Re: State Susceptibility to Suit for Copyright and Patent Infringement

Dan Burk <burkdanl[_at_]shu.edu> writes:
>
> Well, that's the theory, anyway. I'm not sure how much of the
> Fourteenth Amendment argument is a hindsight gloss on the legislation.
> Having been somewhat involved in drafting the patent legislation at
> issue in College Savings Bank, I don't think much consideration was
> given to the section 5 powers at all -- we were pretty much focused
> on Union Gas. In fact, the patent legislation itself was a bit of an
> afterthought; we were afraid that if Congress passed the copyright
> amendment (which the publishing industry had lobbied hard for) without
> saying something about patents, that would give rise to an implication
> that Congress didn't care about patent infringement by the states
> (which could have been significant under Atascadero/Union Gas).
>
> Analytically, I agree that patents and copyrights should be treated
> similarly, but operationally there is no particular reason that they
> must be -- Congress could authorize retrospective relief for one and
> not the other. Given the footnotes in Seminole Indians, I would hope
> the Supreme Court would reslove the disparity, but it is not
> impossible to say "patents are actionable, copyrights aren't."
>

>---------------------

Furthermore, if the theory is that they are protectable because they are "property" subject to a taking, it may make perfect sense to distinguish between more and less "property-like" forms of IP. The property case is probably strongest for patents, weakest for trademarks and publicity rights.

Mark Lemley
<mlemley[_at_]mail.law.utexas.edu> Received on Wed Jul 29 1998 - 17:46:42 GMT