State and federal governments clash – results in inconsistent policies.

Occasionally, state and federal regulatory regimes may clash. That is, even though a state may not have deliberately erected a competing regime for regulating an area controlled by national law, application of state law in a given situation may produce results inconsistent with federal policy. For example, if, in order to prevent public confusion regarding the origin of the goods, a state attempts to forbid copying an article that is itself an insufficient advance over the prior art to merit a federal patent, the state intervention would accord an exclusivity that federal law has declined to extend.16 For American lawyers the crucial question then becomes whether the federal level (or lack) of protection sets the sole measure, or whether the federal law in effect establishes a minimum standard of protection, leaving the states free · to afford more than the national legislature has chosen to accord. 17 If the former, the state law is invalid - "preempted" in the American legal jargon. If the latter, there is no federal preemption.

The foregoing example reveals an important feature of American federal-state relations: determination of whether state law has been preempted by federal law is not easy. Case law on this problem abounds in many areas, and the standard formulas employed by the Supreme Court often obscure rather than illuminate. The core idea is that of conflict, but the existence of a conflict is not self- evident. A judgment of this nature requires a precise assessment of the purposes and effects of both the federal and the state laws.18 In the intellectual property field, the extensive scope of federal regulation often does point to the conclusion that federal law should supply the sole measure of what interests are to be protected.