Bi-Partisan Support for Restoration of Federal Intellectual Property Infringement Remedies By Mark S. Mulholland


On November 1, 2001, bills were introduced in the Senate and House to restore Federal remedies for infringement of intellectual property by States. Both the Senate version introduced by Senator Patrick Leahy (D-Vermont), and the House bill introduced by Representative Howard Coble (R-NC), address imbalances created by the triad of 1999 Supreme Court decisions, known as the Florida Prepaid cases.

The 1999 Florida Prepaid decisions altered the intellectual property landscape, with the Court holding that States cannot be held liable for patent, copyright or trademark infringement -- despite that the States themselves enjoy the protection of those same laws. The only arrow left against States in the intellectual property quiver is injunctive relief, which remains available against State employees under Ex parte Young. The doctrine holds that a state employee acting in violation of law is acting outside his authority, and thus is not cloaked in sovereign immunity. Ex parte Young doctrine provides only limited relief, however, because it does not allow damage awards to compensate for past infringement.

Speaking to Congress in support of his Senate bill on November 1st, Senator Leahy commented that “[t]he Florida Prepaid decisions have been the subject of bipartisan criticism.” The Senator highlighted “the anti-democratic implications of the approach of the activist majority of the Supreme Court, who have left constitutional text behind, ripped up precedent, and treated Congress with less respect than that due to an administrative agency in their haste to impose their natural law notions of sovereignty as a barrier to democratic regulation.”

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