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Computer Law Review and Technology Journal

Abstract

The framers of the Constitution envisioned a nation comprising several separate and independent sovereign states. Under a system of dual sovereignty, the states gave up certain enumerated powers delegated to the federal government. Among those powers was the authority to enact laws designed to protect patent and copyright owners and to encourage invention and original authorship.

Also in the framers' minds - recent caselaw tells us - was the belief that the states retained immunity from suits brought by individuals. Despite this fact, the federal intellectual-property system has historically placed sovereign states on equal footing with individuals as to both the acquisition of intellectualproperty rights and the defense of infringement claims. The federal government has benefited from this system of private "attorneys general" policing their own intellectual-property interests since it relieves Congress of such duties.

Times, however, have changed. Current caselaw holds that states cannot be forced to waive their sovereign immunity to suits brought by individuals for patent and copyright infringement. Congress's private enforcement scheme has been thrown into an uproar because there are 50 large incorporeal entities - large both in the sense of purchasing power and in the sense of production capacity - now freed from the intellectual-property "bargain" governing others.

This paper explores traditional enforcement regimes available to holders of federally granted intellectual-property rights, our country's storied and recently vigorous sovereign immunity jurisprudence, and the historical causes for this great change. The paper also discusses the remedies available to an individual aggrieved by state infringement, including a proposed congressional solution. The wisdom of this solution, along with other potential legislative strategies, are also addressed.

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