[Congressional Record Volume 147, Number 150 (Friday, November 2, 2001)]
[Extensions of Remarks]
[Pages E1986-E1987]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




REGARDING H.R. 3204, THE ``INTELLECTUAL PROPERTY PROTECTION RESTORATION 
                             ACT OF 2001''

                                 ______
                                 

                           HON. HOWARD COBLE

                           of north carolina

                    in the house of representatives

                       Thursday, November 1, 2001

  Mr. COBLE. Mr. Speaker, today Representative Howard Berman and I are 
introducing H.R. 3204, the ``Intellectual Property Protection 
Restoration Act of 2001.'' Senator Leahy is also introducing the same 
legislation in the Senate today. This important legislation takes a 
balanced and minimal approach to solving the complex problem of 
preventing the individual States from infringing intellectual property 
with impunity. This bill simply prevents the award of damages for 
infringement of intellectual property owned by a State if that State 
has not waived its immunity under the Eleventh Amendment. Currently, 
private parties are unable to sue and receive damages for infringement 
by States. H.R. 3204 will level the playing field without curtailing 
States' rights. It is my hope that H.R. 3204 will be enacted into law 
during the 107th Congress.
  Finally, Mr. Speaker, on July 27, 2000, in the 106th Congress, the 
Subcommittee on Courts and Intellectual Property held a hearing on this 
issue. My statement from that hearing is included below.

 Statement of Hon. Howard Coble, Chairman, Subcommittee on Courts and 
Intellectual Property Regarding State Sovereign Immunity and Protection 
                        of Intellectual Property

       Good Morning. The Subcommittee will come to order. Today, 
     we will discuss state sovereign immunity and protection of 
     intellectual property.
       To the great benefit of the United States, the authors of 
     the Constitution understood how the creative arts and 
     sciences would be valuable to the American people, both 
     financially and culturally. The Constitution gives Congress 
     the power to enact laws that give authors and inventors 
     rights in their respective creations for a limited time. 
     Congress has enacted such laws since 1790, resulting in the 
     development of American intellectual property that is the 
     envy of the world. It is one of the top U.S. exports, 
     generates billions of dollars in revenue, creates jobs, and 
     enriches the lives of the American people and the world.
       Since the enactment of the first intellectual property 
     laws, it was universally understood that these laws applied 
     to the states, which would be subject to suit in federal 
     court for damages resulting from infringement. Historically, 
     Congress assumed its Article I powers enabled it to abrogate 
     states

[[Page E1987]]

     sovereign immunity under the 11th Amendment. However, after 
     the Supreme Court ruled that the intent to abrogate based on 
     Article I must be explicitly evident in the relevant statute, 
     some district courts held that the 1976 Copyright Act did not 
     effectively abrogate state sovereign immunity.
       To close this loophole, Congress enacted three laws between 
     1990 and 1992 to abrogate state sovereign immunity: the 
     Copyright Remedy Clarification Act; the Patent and Plant 
     Variety Protection Remedy Clarification Act; and the 
     Trademark Remedy Clarification Act.
       In 1993, the Copyright Remedy Clarification Act was 
     challenged. Before the 5th Circuit made a final ruling, the 
     Supreme Court handed down several decisions that had a direct 
     impact on the case. In Seminole Tribe of Florida v. Florida, 
     the Court overruled previous case law and held that Congress 
     could not use its Article I powers to abrogate state 
     sovereign immunity. In Florida Prepaid Postsecondary 
     Education Expense Board v. College Savings Bank, the Court 
     voided the Patent and Plant Variety Protection Remedy 
     Clarification Act. While the Court held that abrogation was 
     possible under the Enforcement Clause of the 14th Amendment, 
     the Act was not a proper exercise of that power. Finally, in 
     College Savings Bank v. Florida Prepaid Postsecondary 
     Education Expense Board, the Court voided the Trademark 
     Remedy Clarification Act to the extent it abrogated state 
     immunity with regard to false advertising claims. Based on 
     these rulings, the 5th Circuit subsequently held that the 
     Copyright Remedy Clarification Act was unconstitutional.
       The import of these decisions is very serious for 
     intellectual property owners, since states now have the 
     ability to infringe copyrights, patents, and trademarks with 
     impunity. These potential infringements add up to millions of 
     dollars of lost revenue to intellectual property owners. 
     Adding to the unfairness of the situation is the fact that 
     states can and do own copyrights, patents, and trademarks. A 
     state may bring an infringement suit in federal court against 
     a private individual but a private individual may not sue 
     that state for the same transgression. This result creates an 
     uneven playing field and otherwise conflicts with the spirit 
     of Article 1, Section 8 of the Constitution.
       In conclusion, this hearing is not intended to focus on a 
     definitive solution to this problem, rather, it represents 
     the first step in doing so. The hearing is intended to 
     educate the Subcommittee about this important issue: its 
     background, the implications of current case law on the 
     subject, and those efforts to find a solution to the problem 
     of consistently protecting intellectual property rights in a 
     constitutionally permissible manner.

     

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