Supreme Court says states can't be sued for IP infringement

[James Love <love@cptech.org>]

I'll have to take a look at this court decision, but it appears to 
create a much large public use exemption in US patent and
copyright law, if the author is correct. Jamie


--------------------------
Subject: 
         PATNEWS: Supreme Court says states can't be sued for IP infringement
     Date: 
         Wed, 23 Jun 1999 14:45:30 -0400
    From: 
         srctran@world.std.com (Gregory Aharonian)
 Reply-To: 
         patent-news@world.std.com
      To: 
         patent-news@world.std.com




!19990623 Supreme Court says states can't be sued for IP infringement

Greg:

    In two sweeping decisions handed down today, the Supreme Court, on 5-4
votes with the conservative state's righters in the majority, held that
Congress' attempts in 1992 to abrogate the states' immunity from suits for
infringement of patents and copyrights and suits for "trademark
infringement" under the Lanham Act are unconstitutional under the
Eleventh Amendment.  

See COLLEGE SAVINGS BANK v. FLORIDA PREPAID POSTSECONDARY ED. EXPENSE BD.
(98-149) http://supct.law.cornell.edu/supct/html/98-149.ZS.html 
(College Savings Bank I) and

See FLORIDA PREPAID POSTSECONDARY ED. EXPENSE BD. v. COLLEGE SAVINGS BANK
(98-531) http://supct.law.cornell.edu/supct/html/98-531.ZS.html 
(College Savings Bank II)

College Savings Bank I concerns immunity of a state from suit under the
Lanham Act.  

College Savings Bank II concerns immunity of a state from suit for patent
infringement but the opinion would apply as well to copyright infringement.

    The decisions are a blow to owners of intellectual property in which a
state or any agency thereof might have an interest.  Watch out if you own,
for example, a patent on a medical diagnostic procedure that somebody in
the state medical school wants to use!  Watch out if you own, for example,
the copyright on a text book for college students that you labored long
and hard to write and some professor at the state university thinks it
would be neat to have half the book copied and distributed to the students
in his/her class at the cost of photocopying.  Watch out if you have, for
example, a great trademark in connection with which you have spent heavily
over the years in advertising, quality-control, and other things to develop
goodwill and some state bureaucrat decides that her/his program would be
wildly promoted if it would use the same or a confusingly similar mark.

    The opinions leave virtually no way for Congress to make states
susceptible to suits for patent, copyright or trademark infringement,
even when the states infringe in the course of blatantly commercial
activity.

    The decisions, especially that in College Savings II, are also a blow
to the power of Congress under the Section 5 of the 14th Amendment (that
guarantees every person equal protection of the law and due process of law
in denying her/his life, liberty or property) to adopt legislation to
enforce the Amendment.  A major argument in both cases, but one that the
Federal Circuit had approved of in College Savings II, was that Congress
did have power under Section 5 of the 14th Amendment to abrogate the
states' immunity from infringement suits because infringement of
intellectual property by a state is denial of property without due
process of law.

Bill Scanlon
THE SCANLON LAW OFFICE
Developing Science, Technology and the Creative Arts(SM)
Patent, Trademark, Copyright and Other Intellectual Property Law
Internet Law

616 South Ingersoll Street, Suite 1
Madison, Wisconsin 53703-3810, USA
Phone:  (608) 294-1141
Fax:    (608) 294-1322
E-Mail: wscanlon@execpc.com
-- 
James Love, Director, Consumer Project on Technology
I can be reached at love@cptech.org, by telephone 202.387.8030,
by fax at 202.234.5176. CPT web page is http://www.cptech.org

-- 
James Love, Director, Consumer Project on Technology
I can be reached at love@cptech.org, by telephone 202.387.8030,
by fax at 202.234.5176. CPT web page is http://www.cptech.org