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.
Protecting Wisconsinites from Trolls: The Federal Circuit's "Bad Faith" Preemption and its Restrictive Effect,
23 Marq. Intellectual Property L. Rev. 195
Available at: https://scholarship.law.marquette.edu/iplr/vol23/iss2/8
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