Hrdy’17 [Camilla A. Hrdy is a Intellectual Property Law professor at George Mason University and an Affiliated Fellow at the Yale law School Information Society Project, January 10 2017, “IP and Federalism: An Expanding Field”, Written Description, https://writtendescription.blogspot.com/2017/01/ip-and-federalism-expanding-field.html, TP ]

Sharon's project flags five basic, fundamental impediments to uniformity in a given federalized IP regime, and one complicated, but arguably more marginal impediment. I discuss each below.

(1) Non-Preemption and Substantive Divisions in the Law

The first problem is that, as alluded to above, Congress does not really ever preempt state law when it creates a federal IP regime. (See note on Guy's project, and think about all that litigation surrounding ERISA.) This means we get cases like Goldstein upholding a state sound recording right pre-1976 Act, or copyright law being used to remove subject matter from the public domain that would not qualify for federal copyright. Regardless of whether we think such state-driven expansions of federal IP are a good or a bad thing, they cut against the notion of "uniformity" even in the substance of the IP rights themselves. Divisions in substantive law could lead to uncertainty as to what the law actually is and competing state and federal rights. We might say: why would anyone choose a state IP right versus a federal IP right? For patent law, generally speaking a national scope would be preferred over a state-level right. But this is not necessarily the case because absent clear preemption, states can expand IP rights beyond what Congress provides (see note on Guy's and Jennifer's projects above).

(2) Jurisdictional Competition

Second, in trademark, and now in trade secret, state and federal courts have concurrent jurisdiction. Concurrent jurisdiction means diversity of law in several respects: different procedural rules, different case outcomes among federal and state judges, and the possibility for differential interpretations of law (see note on Erie below). We may think this sort of "jurisdictional competition" is positive. Paul Gugliuzza, for example, has provocatively challenged federal courts' exclusive jurisdiction in patent law vis a vis state courts. But the fact remains that concurrent jurisdiction isn't particularly conducive to uniformity of law.

(3) Circuit Splits

Third, in copyright, trademark, and now trade secret, issues on appeal go up through the regional circuit courts rather than a singular Federal Circuit. The possibilities for circuit splits abound.

(4) Disagreement at the Federal Circuit (or its hypothetical equivalent)

Fourth, even in patent law, where we'd assume the Federal Circuit would give us clear, uniform rules, many academics contend this just isn't happening. The Federal Circuit judges cannot seem to reach agreement on key issues like claim construction and patentable subject matter. This leads to disuniformity among panel decisions and changes in the rules from one year to the next. (Others contend the opposite, saying the Federal Circuit should be joined by regional circuits to liven up patent doctrine and escape an "isolated and sterile jurisprudence". Ryan Vacca's review chapter comprehensively discusses the wide range of research and views on this issue.)

(5) Slap-Downs from the Supreme Court

Lastly, even when there is a singular appellate court hearing all appeals in a particular IP field, and the judges on that appellate court tend to agree on clear and uniform rules...their decisions may still get overruled by a dissatisfied Supreme Court. This may not lead to disuniformity per se. The Supreme Court announces the IP law of the land. But it does lead to significant "temporal disuniformity", as the rule today is not necessarily the rule tomorrow.

In any case, Sharon's basic point is well-taken: even assuming (express or implied) preemption, even assuming exclusive federal jurisdiction, and even assuming a single harmonious circuit court to handle all appeals, federalization does not necessarily mean complete uniformity.