Abstract
In this comment, I use Wis. Stat. Ann. § 100.197 (“Wisconsin’s anti-PAE statute”) to demonstrate the significant degree to which the Federal Circuit’s current preemption regime restricts states’ abilities to regulate the behavior of PAEs. In Part II, I summarize Wisconsin’s legislative response to PAEs. In Part III, I contrast the Federal Circuit’s preemption doctrine and the Supreme Court’s doctrine as it relates to state laws similar to anti-PAE statutes. Paying particular attention to Wisconsin’s patent notification statute, I provide a brief preemption analysis in Part IV. Finally, in Part V, I conclude by arguing that the severe consequences of the Federal Circuit’s standard, as demonstrated by its likely preemptive effect on Wisconsin’s anti-PAE statute, highlight the need for the emergence of the Supreme Court’s preemption analysis in the context of state laws touching on patents.
Repository Citation
Andrew Salomone,
Protecting Wisconsinites from Trolls: The Federal Circuit's "Bad Faith" Preemption and its Restrictive Effect,
23 Marq. Intellectual Property L. Rev. 195
(2019).
Available at: https://scholarship.law.marquette.edu/iplr/vol23/iss2/8
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