Intellectual Property: State Immunity in Infringement Actions

A letter report issued by the General Accounting Office with an abstract that begins "Intellectual property--which includes federally granted patents, trademarks, and copyrights--is often owned or used by state governmental entities, such as public institutions of higher education. Until recently, state entities that made unauthorized use of, or "infringed," the intellectual property of others were subject to lawsuits in federal court. In 1999, however, the U.S. Supreme Court held that states were not subject to such suits, striking down a federal law that would have taken away a state's right to claim immunity under the Eleventh Amendment of the U.S. Constitution when sued in federal court for patent infringement. Some intellectual property owners are concerned that they no longer have adequate remedies if a state commits infringement. Although the precise number is difficult to determine, few accusations of intellectual property infringement appear to have been made against the states through either lawsuits or matters handled out of court. GAO identified 58 lawsuits that had been active since January 1985 in either a state or federal court in which a state was a defendant in an action involving the unauthorized use of intellectual property. Intellectual property owners appear to have few proven alternatives or remedies against state infringement available if they cannot sue the states for damages in federal court. States are not likely to waive their immunity voluntarily, and, in some cases, their own laws may prohibit them from doing so. The intellectual property community is divided on what, if anything, states should and could do to protect the rights of intellectual property owners against state infringement.