Courts balance federalism—Federal courts working with state courts

Nonetheless, the U.S. Constitution proves quite accommodating to federal protection for many varieties of intellectual property. The document both authorizes and anticipates creation of a federal patent and copyright system, for it explicitly authorizes the national government "to promote the Progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. " 3 The little available evidence of the Framers' intent in including this authority indicates that they recognized the inefficacy of disparate state regulation of inventions and works of authorship: in Federalist No. 43, James Madison observed, "The utility of this power will scarcely be questioned . . . . The States cannot separately make effectual provision for either ... [copyright or patent]." Madison's point would seem equally applicable to other varieties of intellectual property. Indeed, today, most commentators would acknowledge the national government's authority to regulate all forms of intellectual property by virtue of the constitutional grant to Congress of the power "to regulate Commerce ... among the several States. " 5 But the existence of authority is one thing, its exercise quite another. Here the historical dynamics of American federalism are important. The vast domain of federal power has not been fully occupied, and accordingly, outside the realm of patent and copyright, the states do play a role in the regulation of intellectual property. Moreover, state-based protections have occasionally penetrated even these core federal areas. There are various reasons for continued state intervention in at least certain intellectual property areas. Some stem from the states' established role in governing property rights and relations in general. Another, which forms one focus of this paper, derives from the U.S. tradition of looking to the states as "laboratories" for the development of the law and social policy. 6 According to this tradition, state courts and legislatures experiment locally with evolving rights and modes of regulation. Subsequently, the local experience may form the basis for adoption of the same or similar laws by other states, and perhaps ultimately by the national legislature