[Congressional Record Volume 147, Number 150 (Friday, November 2, 2001)]
[Extensions of Remarks]
[Pages E1993-E1994]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




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

                                 ______
                                 

                         HON. HOWARD L. BERMAN

                             of california

                    in the house of representatives

                       Thursday, November 1, 2001

  Mr. BERMAN. Mr. Speaker, today, I join Representative Coble in 
introducing the Intellectual Property Protection Restoration Act of 
2001. Introduction of this legislation coincides with introduction of a 
companion bill in the Senate by our distinguished colleague, Senator 
Patrick Leahy. These bills will rectify a serious inequity in 
intellectual property protection resulting from recent Supreme Court 
decisions.

[[Page E1994]]

  These recent decisions held that, under the Eleventh Amendment of the 
United States Constitution, states have sovereign immunity in state and 
federal courts against money damages suits for intellectual property 
infringements. The Supreme Court came to this conclusion despite 
unequivocal Congressional intent to abrogate state sovereign immunity 
through enactment of the Copyright Remedy Clarification Act (CRCA), 
Patent Remedy Act (PRA), and Trademark Remedy Clarification Act (TRCA) 
in 1992.
  While immune from suit for money damages when they infringe the 
intellectual property rights of others, states can still secure 
protection for their own patents, copyrights, and trademarks under 
federal law, and can sue infringers of their rights for money damages. 
I believe it is a serious inequity to allow a State to sue infringers 
of its intellectual property rights when the State itself can infringe 
the rights of others with impunity.
  Last month, the GAO released a study entitled ``Intellectual 
Property: State Immunity in Infringement Actions.'' This report 
provides strong evidence of the need for the legislation we introduce 
today.
  Since 1985, at least 58 intellectual property lawsuits have been 
brought with a State as one of the defendants, and a larger number have 
been settled out of court. It is important to note that when these 
suits occurred, it was largely assumed, or explicitly mandated in 
federal law, that states were subject to suit for intellectual property 
infringement. While I do not believe states will become rampant, 
willful infringers as a result of the recent Supreme Court decisions, 
it is reasonable to assume that the incidence of State infringements 
will increase. Conversely, the dramatically growing patent, copyright, 
and trademark portfolios of State entities foretell a corresponding 
increase in intellectual property suits brought by States. In other 
words, the facts indicate that the inequity will increase as time 
progresses unless Congress takes action.
  As I noted, Congress previously passed legislation to correct the 
inequity created by State immunity from suit for intellectual property 
infringements, and the Supreme Court struck down these Acts on 
constitutional grounds. The legislation my colleagues and I introduce 
today represents a well-considered attempt to correct the identified 
inequity in a constitutionally permissible manner.
  Senator Leahy, Chairman of the Senate Judiciary Committee, and his 
staff deserve the greatest measure of credit for their hard work in 
developing this legislation. Also deserving credit are the many 
constitutional scholars, policy advocates, and government agencies that 
contributed their time, thoughts, and drafting talents to this effort.
  I am pleased that a consensus emerged among the various collaborators 
in support of the ``waiver'' approach embodied in the legislation. 
During a hearing before the House Judiciary Subcommittee on Courts and 
Intellectual Property last summer, I opined that the ``waiver'' 
approach appeared the best mechanism to rectify the inequity in our 
intellectual property laws. By creating a ``waiver'' requirement--that 
is, requiring a State to waive its sovereign immunity from suits for 
intellectual property infringement in order to secure the ability to 
bring such suits itself--we avoid constitutional pitfalls and still 
manage to create an even playing field for all intellectual property 
owners.
  Though we developed this bill in a highly collaborative and 
deliberative manner, I by no means maintain that it is a ``perfect'' 
solution. Thus, I will remain open to suggestions for amending the 
language to improve its efficacy or rectify any unintended 
consequences. However, I am firmly committed to moving this legislation 
during the remainder of the 107th Congress.

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