Re: Florida Pre-paid v. College Savings Bank

It appears that there is a natural Jiu-Jitsu that Congress can use here, if they are so inclined: simply replace Section 296(a) of the Patent Act (and corresponding sections of the Copyright Act and the Lanham Act), with provisions stating that no Patent (copyright, trademark) owned, exclusively licensed or otherwise controlled, directly or indirectly, in whole or in part by a State shall be enforceable unless the State has first unequivocally and expressly waived sovereign immunity as to all patent, copyright and trademark claims.

This converts College Savings Bank into a mere "opt-in" or "opt-out" choice for the state -- if the state wishes to assert its portfolio of patents, copyrights and related IP (as well as avoid incurring the ire of their IP trading partners who are joint owners or licensors), it will have to waive its immunity.

I anticipate that a great many states may well "opt-in," if only to preserve State University (and private University) technology transfer programs.

If a tougher hot-foot is desired, provide that no patent is enforceable by a domicile of a State unless the State has waived sovereign immunity.

Andrew C. Greenberg
<werdna[_at_]gate.net> Received on Mon Jun 28 1999 - 00:52:58 GMT