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- Title
CLOSING FEDERALISM'S LOOPHOLE IN INTELLECTUAL PROPERTY RIGHTS.
- Authors
Neufeld, Robert T.
- Abstract
For more than ten years the courts and Congress have grappled with the issue of subjecting states to suit in federal court for intellectual property infringement. Under the Supreme Court's Florida Prepaid decisions, states and state entities are currently insulated from suit by private entities in federal court for intellectual property infringement under the sovereign immunity preserved by the Eleventh Amendment. This holding has far-reaching effects on the ability of private parties to enforce their intellectual property rights because federal court is the preferred and, often, the only venue available for enforcing such rights. Furthermore, this state of the law is of increasing importance in view of the growing role that many states and state entities are taking in the intellectual property arena. Since the Florida Prepaid decisions, several different legislative remedies have been proposed in Congress, but none have yet been enacted into law. Congress has also commissioned a study by the General Accounting Office to gather statistics and opinions concerning the involvement of states in intellectual property law and the effect of the immunity from suit they currently enjoy in federal court. The results of this study, made available this past year, will impact the scope of the proposed legislation and whether, assuming it is enacted, the legislation survives judicial review.
- Subjects
INTELLECTUAL property; COPYRIGHT infringement; FEDERAL government
- Publication
Berkeley Technology Law Journal, 2002, Vol 17, Issue 4, p1295
- ISSN
1086-3818
- Publication type
Article