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108th CONGRESS
1st Session
S. 1191
To restore Federal remedies for infringements of intellectual property
by States, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
June 5, 2003
Mr. Leahy introduced the following bill; which was read twice and
referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To restore Federal remedies for infringements of intellectual property
by States, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; REFERENCES.
(a) Short Title.--This Act may be cited as the ``Intellectual
Property Protection Restoration Act of 2003''.
(b) References.--Any reference in this Act to the Trademark Act of
1946 shall be a reference to the Act entitled ``An Act to provide for
the registration and protection of trade-marks used in commerce, to
carry out the provisions of certain international conventions, and for
other purposes'', approved July 5, 1946 (15 U.S.C. 1051 et seq.).
SEC. 2. PURPOSES.
The purposes of this Act are to--
(1) help eliminate the unfair commercial advantage that
States and their instrumentalities now hold in the Federal
intellectual property system because of their ability to obtain
protection under the United States patent, copyright, and
trademark laws while remaining exempt from liability for
infringing the rights of others;
(2) promote technological innovation and artistic creation
in furtherance of the policies underlying Federal laws and
international treaties relating to intellectual property;
(3) reaffirm the availability of prospective relief against
State officials who are violating or who threaten to violate
Federal intellectual property laws; and
(4) abrogate State sovereign immunity in cases where States
or their instrumentalities, officers, or employees violate the
United States Constitution by infringing Federal intellectual
property.
SEC. 3. INTELLECTUAL PROPERTY REMEDIES EQUALIZATION.
(a) Amendment to Patent Law.--Section 287 of title 35, United
States Code, is amended by adding at the end the following:
``(d)(1) No remedies under section 284 or 289 shall be awarded in
any civil action brought under this title for infringement of a patent
issued on or after January 1, 2004, if a State or State instrumentality
is or was at any time the legal or beneficial owner of such patent,
except upon proof that--
``(A) on or before the date the infringement commenced or
January 1, 2006, whichever is later, the State has waived its
immunity, under the eleventh amendment of the United States
Constitution and under any other doctrine of sovereign
immunity, from suit in Federal court brought against the State
or any of its instrumentalities, for any infringement of
intellectual property protected under Federal law; and
``(B) such waiver was made in accordance with the
constitution and laws of the State, and remains effective.
``(2) The limitation on remedies under paragraph (1) shall not
apply with respect to a patent if--
``(A) the limitation would materially and adversely affect
a legitimate contract-based expectation in existence before
January 1, 2004; or
``(B) the party seeking remedies was a bona fide purchaser
for value of the patent, and, at the time of the purchase, did
not know and was reasonably without cause to believe that a
State or State instrumentality was once the legal or beneficial
owner of the patent.
``(3) The limitation on remedies under paragraph (1) may be raised
at any point in a proceeding, through the conclusion of the action. If
raised before January 1, 2006, the court may stay the proceeding for a
reasonable time, but not later than January 1, 2006, to afford the
State an opportunity to waive its immunity as provided in paragraph
(1).''.
(b) Amendment to Copyright Law.--Section 504 of title 17, United
States Code, is amended by adding at the end the following:
``(e) Limitation on Remedies in Certain Cases.--
``(1) No remedies under this section shall be awarded in
any civil action brought under this title for infringement of
an exclusive right in a work created on or after January 1,
2004, if a State or State instrumentality is or was at any time
the legal or beneficial owner of such right, except upon proof that--
``(A) on or before the date the infringement
commenced or January 1, 2006, whichever is later, the
State has waived its immunity, under the eleventh
amendment of the United States Constitution and under
any other doctrine of sovereign immunity, from suit in
Federal court brought against the State or any of its
instrumentalities, for any infringement of intellectual
property protected under Federal law; and
``(B) such waiver was made in accordance with the
constitution and laws of the State, and remains
effective.
``(2) The limitation on remedies under paragraph (1) shall
not apply with respect to an exclusive right if--
``(A) the limitation would materially and adversely
affect a legitimate contract-based expectation in
existence before January 1, 2004; or
``(B) the party seeking remedies was a bona fide
purchaser for value of the exclusive right, and, at the
time of the purchase, did not know and was reasonably
without cause to believe that a State or State
instrumentality was once the legal or beneficial owner
of the right.
``(3) The limitation on remedies under paragraph (1) may be
raised at any point in a proceeding, through the conclusion of
the action. If raised before January 1, 2006, the court may
stay the proceeding for a reasonable time, but not later than
January 1, 2006, to afford the State an opportunity to waive
its immunity as provided in paragraph (1).''.
(c) Amendment to Trademark Law.--Section 35 of the Trademark Act of
1946 (15 U.S.C. 1117) is amended by adding at the end the following:
``(e) Limitation on Remedies in Certain Cases.--
``(1) No remedies under this section shall be awarded in
any civil action arising under this Act for a violation of any
right of the registrant of a mark registered in the Patent and
Trademark Office on or after January 1, 2004, or any right of
the owner of a mark first used in commerce on or after January
1, 2004, if a State or State instrumentality is or was at any
time the legal or beneficial owner of such right, except upon
proof that--
``(A) on or before the date the violation commenced
or January 1, 2006, whichever is later, the State has
waived its immunity, under the eleventh amendment of
the United States Constitution and under any other
doctrine of sovereign immunity, from suit in Federal
court brought against the State or any of its
instrumentalities, for any infringement of intellectual
property protected under Federal law; and
``(B) such waiver was made in accordance with the
constitution and laws of the State, and remains
effective.
``(2) The limitation on remedies under paragraph (1) shall
not apply with respect to a right of the registrant or owner of
a mark if--
``(A) the limitation would materially and adversely
affect a legitimate contract-based expectation in
existence before January 1, 2004; or
``(B) the party seeking remedies was a bona fide
purchaser for value of the right, and, at the time of
the purchase, did not know and was reasonably without
cause to believe that a State or State instrumentality
was once the legal or beneficial owner of the right.
``(3) The limitation on remedies under paragraph (1) may be
raised at any point in a proceeding, through the conclusion of
the action. If raised before January 1, 2006, the court may
stay the proceeding for a reasonable time, but not later than
January 1, 2006, to afford the State an opportunity to waive
its immunity as provided in paragraph (1).''.
(d) Technical and Conforming Amendments.--
(1) Amendments to patent law.--Section 296 of title 35,
United States Code, and the item relating to section 296 in the
table of sections for chapter 29 of such title, are repealed.
(2) Amendments to copyright law.--Section 511 of title 17,
United States Code, and the item relating to section 511 in the
table of sections for chapter 5 of such title, are repealed.
(3) Amendments to trademark law.--Section 40 of the
Trademark Act of 1946 (15 U.S.C. 1122) is amended--
(A) by striking subsection (b);
(B) in subsection (c), by striking ``or (b)'' after
``subsection (a)''; and
(C) by redesignating subsection (c) as subsection
(b).
SEC. 4. CLARIFICATION OF REMEDIES AVAILABLE FOR STATUTORY VIOLATIONS BY
STATE OFFICERS AND EMPLOYEES.
In any action against an officer or employee of a State or State
instrumentality for any violation of any of the provisions of title 17
or 35, United States Code, the Trademark Act of 1946, or the Plant
Variety Protection Act (7 U.S.C. 2321 et seq.), remedies shall be
available against the officer or employee in the same manner and to the
same extent as such remedies are available in an action against a
private individual under like circumstances. Such remedies may include
monetary damages assessed against the officer or employee, declaratory
and injunctive relief, costs, attorney fees, and destruction of
infringing articles, as provided under the applicable Federal statute.
SEC. 5. LIABILITY OF STATES FOR CONSTITUTIONAL VIOLATIONS INVOLVING
INTELLECTUAL PROPERTY.
(a) Due Process Violations.--Any State or State instrumentality
that violates any of the exclusive rights of a patent owner under title
35, United States Code, of a copyright owner, author, or owner of a
mask work or original design under title 17, United States Code, of an
owner or registrant of a mark used in commerce or registered in the
Patent and Trademark Office under the Trademark Act of 1946, or of an
owner of a protected plant variety under the Plant Variety Protection
Act (7 U.S.C. 2321 et seq.), in a manner that deprives any person of
property in violation of the fourteenth amendment of the United States
Constitution, shall be liable to the party injured in a civil action in
Federal court for compensation for the harm caused by such violation.
(b) Takings Violations.--
(1) In general.--Any State or State instrumentality that
violates any of the exclusive rights of a patent owner under
title 35, United States Code, of a copyright owner, author, or
owner of a mask work or original design under title 17, United
States Code, of an owner or registrant of a mark used in
commerce or registered in the Patent and Trademark Office under
the Trademark Act of 1946, or of an owner of a protected plant
variety under the Plant Variety Protection Act (7 U.S.C. 2321
et seq.), in a manner that takes property in violation of the
fifth and fourteenth amendments of the United States
Constitution, shall be liable to the party injured in a civil
action in Federal court for compensation for the harm caused by
such violation.
(2) Effect on other relief.--Nothing in this subsection
shall prevent or affect the ability of a party to obtain
declaratory or injunctive relief under section 4 of this Act or
otherwise.
(c) Compensation.--Compensation under subsection (a) or (b)--
(1) may include actual damages, profits, statutory damages,
interest, costs, expert witness fees, and attorney fees, as set
forth in the appropriate provisions of title 17 or 35, United
States Code, the Trademark Act of 1946, and the Plant Variety
Protection Act; and
(2) may not include an award of treble or enhanced damages
under section 284 of title 35, United States Code, section
504(d) of title 17, United States Code, section 35(b) of the
Trademark Act of 1946 (15 U.S.C. 1117 (b)), or section 124(b)
of the Plant Variety Protection Act (7 U.S.C. 2564(b)).
(d) Burden of Proof.--In any action under subsection (a) or (b)--
(1) with respect to any matter that would have to be proved
if the action were an action for infringement brought under the
applicable Federal statute, the burden of proof shall be the
same as if the action were brought under such statute; and
(2) with respect to all other matters, including whether
the State provides an adequate remedy for any deprivation of
property proved by the injured party under subsection (a), the
burden of proof shall be upon the State or State
instrumentality.
(e) Effective Date.--This section shall apply to violations that
occur on or after the date of enactment of this Act.
SEC. 6. RULES OF CONSTRUCTION.
(a) Jurisdiction.--The district courts shall have original
jurisdiction of any action arising under this Act under section 1338 of
title 28, United States Code.
(b) Broad Construction.--This Act shall be construed in favor of a
broad protection of intellectual property, to the maximum extent
permitted by the United States Constitution.
(c) Severability.--If any provision of this Act or any application
of such provision to any person or circumstance is held to be
unconstitutional, the remainder of this Act and the application of the
provision to any other person or circumstance shall not be affected.
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Pages: 1 Other Popular 108th Congressional Bills Documents:
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