This article makes several assertions: (1) The Intellectual Property Clause of the Constitution, even read with the Commerce Clause, prevents Congress from giving authors or inventors exclusive rights unbounded by premeasured time limitations; (2) Because such limits exist, even incontestable trademarks must be subject to functionality challenges in order to prevent conflict with the Patent Clause; (3) The Intellectual Property Clause requires a similar challenge to prevent conflict with the Copyright Clause; (4) The states are also limited by either direct constitutional mandate or statutory preemption. Based on the first two assertions, this article argues that the Fourth Circuit's decision in Shakespeare Co. v. Silstar Corp. is unconstitutional. This outcome also highlights the importance of the last two assertions. The ramifications of the third assertion are left to another paper. The fourth assertion is both the most interesting and the most theoretical. The latter part of this Article suggests that states are directly limited by the Intellectual Property Clause, especially if Congress passes any legislation under that Clause. This outcome may be considered to rest on (1) statutory/constitutional preemption created by the Intellectual Property Clause in combination with any federal legislation under that Clause, or (2) narrow constitutional preemption by the Intellectual Property Clause acting alone, or (3) a dormant Intellectual Property Clause,' or (4) the intersection of the Intellectual Property Clause and the Dormant Commerce Clause. However analyzed, Congress is constitutionally barred from removing this limitation. Finally, this Article asserts that in an "evolving Constitution," the best reading of "limited times" may be "limited in relation to the economic life of the res."
Malla Pollack, Unconstitutional Incontestability? The Intersection of the Intellectual Property and Commerce Clauses of the Constitution: Beyond a Critique of Shakespeare Co. v. Silstar Corp, 18 SEATTLE U. L. REV. 259 (1995).