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| DATE | 2002-10-23 |
| FROM | Seth Johnson
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| SUBJECT | Re: [hangout] alert- congress tries to ban gpl in fed funded software
|
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Date: Wed, 23 Oct 2002 14:57:52 -0400
From: Seth Johnson
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Subject: Re: [hangout] alert- congress tries to ban gpl in fed funded software
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William Brent wrote:
>
> I'm confused - isn't the public already entitled to anything the
> government develops with tax dollars? (unless national security
> is at risk)?
Not since Bayh-Dole was passed in 1980. Bayh-Dole actually
said that private interests could appropriate the fruits of
publicly-funded research. Astonishing, right? That's what
all the "Technology Transfer" Offices at the universities
are all about. They get to sell research to big
pharmaceuticals and software houses -- and the contracts are
kept secret.
A major part of the large picture. A huge racket.
Below I've pasted a bit on developments in this arena.
Seth Johnson
----
Two giant constituencies -- who naturally ought to have at
heart many of the same concerns as the presently burgeoning
community of citizens concerned about Federal and
international policy initiatives that affect their
technological and online freedom -- are now in the position
of selling out their legally recognized power to resist
these initiatives. These constituencies are the sovereign
American States and their Universities.
Following is a letter to Senator Leahy from the Bayh-Dole
stakeholders at numerous United States universities
(University "Technology Transfer Officers") on Leahy's
Senate Bill S-2031 (The "Intellectual Property Protection
Restoration Act").
Bayh-Dole is the Act that signals the moment at which
Universities in America went from "intellectual property" to
Intellectual Property, abrogating the clear understanding
that they had held of how metaphorical and internally
contradictory that phrase actually is.
Bayh-Dole not only undermined the Universities' mission of
fostering the advancement of general human knowledge, but it
also created a group of people with a vested interest in the
idea that they should be able to sell the fruits of their
research, despite the fact that it is Federally funded and
traditionally in the public domain as a result. Bayh-Dole
authorized Universities to enter into enormously lucrative
private contracts with big-time "IP" stakeholders such as
pharmaceuticals and software companies, in which those
companies could obtain ownership of the fruits of the
Federally-funded State schools' research.
S-2031 is a ludicrous Bill now entered before Congress,
specifically designed to counter the fact that as sovereign
powers, States and their Universities have immunity against
Federal claims of intellectual property infringement.
Certain Supreme Court cases have affirmed that the States
have sovereignty such that they would be immune from charges
of "intellectual property" infringement from the Federal
level. A State can very well, if it chooses, grant broad
freedoms to its Universities in the use of copyrighted and
other materials.
The letterwriters, beneficiaries of the Bayh-Dole Act,
specifically state that they are supportive of the Bill's
purpose of preventing "end runs" on the part of the States,
if the Bill would only incorporate provisions to allow
individual State Universities to grant their own waivers for
themselves. They propose that these provisions would assure
that the Federal Government could more easily obtain waivers
from the States against their asserting sovereign immunity
in "intellectual property" matters.
This Bill, and this response on the part of Bayh-Dole
"Technology Transfer Officers," are vastly misguided. While
the provisions in this letter might have the interesting
effect of undermining the force of Leahy's Bill, the
position it presents nevertheless fails to address the real
issues at stake.
Concerned citizens should act now to drive a wedge between
the States, who should know better, and the Feds, who have
been coopting the Universities in their mission for many
years now, with little to no input on the part of the broad
populace, who are the ones most affected by shortsighted
policies such as the DMCA and other content industry and
WIPO-inspired measures.
This circumstance places at stake one of the most powerful
recourses to which American citizens may resort against a
large array of issues related to the enforcement of
so-called "intellectual property."
Numerous law scholars are articulating a rationale for
S-2031 on the theory that it is not fair for States to be
able to assert autonomy regarding "intellectual property"
policy. But the truth is, America needs those who are the
supposed stewards of academic intellectual freedom to seize
any opportunity to resist and overturn attempts to make
property out of ideas.
The conscientious action of just a few enlightened
University Officers, or even of otherwise compromised
Bayh-Dole agents, can go miles towards reversing the bribe
that Bayh-Dole instituted in 1980. Universities and their
State Representatives must register their outrage ragarding
the idea of selling out their States' "birthright," so to
speak, and speak the truth in clear and uncompromising terms
about what Bayh-Dole and S-2031 really mean.
Seth Johnson
Following are 1) a snippet of an Alternet article on
Bayh-Dole; 2) the reformist letter; and 3) the
(reformist-amended version of) the S-2031 Bill.
On Bayh-Dole, see:
http://www.alternet.org/story.html?StoryID=9290
http://www.openinformatics.org/faq.html#bayh-dole
[CC] Counter-copyright:
http://cyber.law.harvard.edu/cc/cc.html
----
(From the Alternet article:)
Prior to the passage of the Bayh-Dole Act, patent laws
strictly separated academic research from corporate profit.
If a scientist took even one dime of money from the
government, then the rights to his or her discovery remained
in the public domain. In the mid 1970s, with the economy in
a slump, and the U.S. trailing Japan in the technology
revolution, corporations began lobbying for changes in the
patent laws, changes that would hasten the transfer of
technologies from the public to the private sectors.
In 1980, Bob Dole co-sponsored a bill that gave private
industry exclusive licensing rights to any promising
discoveries arising from federally funded research. In
Congressional hearings on the bill, then Commerce Secretary
Phillip Klutznick remarked that the bill was akin to "using
tax money to pay a contractor to build a road and then
allowing the contractor to charge an additional toll to
those who travel the road."
Admiral Hyman Rickover added his objections, testifying that
rather than serving the public interest, the bill would:
"throttle technological development, hurt small business,
stifle competition, and cost the taxpayer plenty while
promoting 'greater concentration of economic power in the
hands of large corporations'."
Nevertheless, Bayh-Dole was enacted in October 1980, and
thenceforth, the fruits of academic research passed from
taxpayer funded laboratories directly to the wallets of the
pharmaceutical manufacturers.
The icing on the cake was augmentation of Bayh-Dole with the
Federal Technology Transfer Act of 1986. This law allows
government researchers at federal laboratories like the
National Institutes of Health (NIH) to cut deals with
biotech and pharmaceutical firms, known as Cooperative
Research and Development Agreements, effectively privatizing
all federally funded research.
All agreements made under the Bayh-Dole Act are secret.
Here's one that was made public only when it was nipped in
the bud by the NIH. In 1992, Scripps Research Institute, of
La Jolla California, a facility which receives $100 million
annually from the NIH, made a deal with Sandoz, the Swiss
pharmceutical firm. Sandoz would pay Scripps $300 million
over 10 years, in return for exclusive rights to all
discoveries made by Scripps.
(The letter, forwarded from UVentures Techno-L list,
Techno-L-at-lists.uventures.com)
Mani Iyer (miyer-at-lsu.edu) wrote: > > Folks:
> We at Louisiana State University have developed a letter
> to send to Senators and Representatives to alert them to
> the devastating effect that S. 2031 would have on
> technology transfer at state universities, and to propose
> an amendment to the bill that would make it far less
> damaging, while still achieving the goals sought by the
> bill's proponents.
>
> We invite you to use our letter as a model on which you
> may wish to base your own letter to your state
> Congressional delegation. Such letters are probably most
> effective when signed by higher-ranking officials --
> e.g., by the university president, chancellor, or both,
> rather than by the technology transfer officer (no
> offense intended -- I'm one myself).
>
> The model letter may be downloaded at:
> http://www.lsu.edu/intellectual_property/Senate_Letter.doc
>
> (Please let me know if you are unable to download the model letter)
>
> Sincerely,
> - Mani
> ======================================
> Mani Iyer, Director
> Office of Intellectual Property
> Louisiana State University
> 203 David Boyd Hall
> Baton Rouge, Louisiana 70803-6100, USA
> Tel: 225-578-6941 Fax: 225-578-4925
> E-Mail: miyer-at-lsu.edu
> http://www.lsu.edu/intellectual_property
> =======================================
>
> ---------------------------------------------------------------------
> Uventures.com the home of Techno-L
> Techno-L Archives are available on UVentures.com.
> To access the searchable archives, register FREE at http://www.uventures.com
>
> To subscribe, e-mail: techno-l-subscribe-at-lists.uventures.com
> To unsubscribe, e-mail:techno-l-unsubscribe-at-lists.uventures.com
> For additional commands, e-mail: techno-l-help-at-lists.uventures.com
----
(The letter:)
[To be Printed on Appropriate Letterhead]
April ____, 2002
Senator ________________ Via Fed Ex
_______________
Senate Office Building Washington, D.C. 20510-______
RE: Pending State Sovereign Immunity / Intellectual
Property Bills (S. 2031, S. 1611, H.R. 3204)
Dear Senator _________:
We write to voice our grave concern over the
unintended consequences of S. 2031, and to suggest an
amendment that would resolve these concerns while still
achieving the ends sought by the bill’s sponsors.
In 1980 Congress passed the Bayh-Dole Act, 35 U.S.C.
§ 200-212, to promote technology transfer and economic
development by encouraging universities to patent inventions
made with federal support, and to license those inventions
to private industry.
The Bayh-Dole Act has worked well. The Association
of University Technology Managers (AUTM) has reported that
technology transfer in FY 1999 (conducted largely but not
exclusively by universities) had added about $40 billion to
the U.S. economy, supported 260,000 jobs, and helped to
spawn new businesses, industries, and markets. AUTM said
that there was strong support for the conclusion that at
least 2000 products are presently available to the public
that would never have been created in the absence of
technology transfer, development, and licensing activities
by AUTM members.
Owners of patents, copyrights, and trademarks can
enforce their rights by bringing suit against infringers.
However, the Supreme Court has interpreted the Eleventh
Amendment to grant states and some state agencies “sovereign
immunity” from such infringement actions in federal court.
Congress has previously enacted statutes attempting to
abrogate state sovereign immunity under federal intellectual
property laws, but in 1999 the Supreme Court invalidated
these statutes. Florida Prepaid Postsecondary Education
Expense Board v. College Savings Bank, 527 U.S. 627 (1999);
College Savings Bank v. Florida Prepaid Postsecondary
Education Expense Board, 527 U.S. 666 (1999). The current
status of the law, therefore, is that states and many state
agencies (including many state universities) may sue others
for infringement of state-owned intellectual property; but
they may not, in turn, be sued for damages in federal court
for infringing patents, copyrights, and federally-registered
trademarks, unless the state agrees to be sued.
S. 2031, introduced by Senator Leahy (also S.1611 &
H.R. 3204), while intended to “level the playing field,”
would annul many of the rights associated with patents,
copyrights, and trademarks owned by a state and by state
universities, such as _________. To avoid these harsh
penalties, a state would be required to waive its sovereign
immunity in suits concerning patents, copyrights, and
federally-registered trademarks. This bill is
well-intentioned, but would have major, unintended
consequences.
An effective waiver of immunity under this
legislation could only be made by the state as a whole, not
by an individual state university. Unless a state agreed to
be sued by anyone who wished to bring a claim for patent,
copyright, or trademark infringement, that state and its
agencies would no longer be able to enforce or license
intellectual property rights effectively. The result would
be to reduce or eliminate the potential for licensing
university intellectual property rights to private industry,
and consequently to reduce or eliminate promising
possibilities for economic development.
The pending legislation provides that a waiver of
sovereign immunity would not avoid these penalties unless
the waiver were made by the state as a whole. For example,
even if an individual state university such as _________
were willing to waive its own sovereign immunity in response
to this legislation, that waiver would be ineffective -- it
would not restore the university’s intellectual property
rights. Under the pending bill, a waiver would not be
effective unless it were made on behalf of the entire state.
The proposed legislation would have significant,
unintended consequences. The law would hamper technology
transfer and economic development, activities that Congress
has otherwise strongly encouraged, especially through the
highly successful, 22-year-old Bayh-Dole Act. The proposed
law would place a state research university in the untenable
position of being a proponent in the state legislature for a
waiver of sovereign immunity that would extend to the entire
state. If a state research university were unable to
convince its legislature to consent to any and all
infringement suits against the state highway department,
state hospitals, and all other branches of state government,
then that university would effectively be shut out of
technology transfer and development. That situation could
cause highly qualified faculty members to seek employment
elsewhere.
The proposed legislation is well-intentioned, but it
is a solution to a non-existent problem. States have not
hidden behind sovereign immunity to trample private
intellectual property rights. A September 2001 study by the
General Accounting Office found that “few accusations of
intellectual property infringement appear to have been made
against the states either through the courts or
administratively” over the last fifteen years. Furthermore,
many such disputes are settled out-of-court in a mutually
satisfactory manner, such as by obtaining a license or
reaching a monetary settlement. Also, “checks and
balances” operating through political channels help to
ensure that state agencies do not disregard legitimate
private rights.
The proposed legislation would place state research
universities at a distinct disadvantage compared to private
universities. To be allowed to continue technology transfer
activities, a state university would be forced to persuade
the state legislature to enact legislation affecting the
entire state government and all its agencies. A private
university would suffer no such impediment, because private
universities could continue their technology transfer
activities without the need for any new,
politically-difficult state legislation.
The proposed legislation would also
disproportionately affect state research universities
compared to other state agencies. State agencies other than
universities would not suffer significantly, because other
state agencies typically do not play a substantial role in
the technology transfer and development activities that
would be primarily affected by the bill.
The proposed legislation would disregard a sovereign
immunity waiver made on behalf of an individual state
university. But the law’s impact could be made less drastic
-- and the law might in fact go further toward achieving its
proponent’s goals -- if it were amended to recognize a
waiver of sovereign immunity made on behalf of a state
university. If a university need only obtain a waiver of
sovereign immunity for itself, and not for the highway
department and all other parts of the state government, then
the waivers of sovereign immunity sought by the bill’s
proponents might well be more forthcoming. The agencies who
actually participate in intellectual property programs would
waive sovereign immunity, thus putting the players on the
level playing field that the bill’s proponents seek. Then
state universities need only take appropriate action to
obtain an immunity waiver on their own behalf, without being
forced into the impossible position of seeking a waiver that
would extend to the entire state government.
We are enclosing a proposed amendment to S. 2031
along these lines. The amendment would also recognize
immunity waivers made by bona fide state universities, in
addition to a waiver made by an entire state. The proposed
exception would apply only to bona fide state universities,
and therefore would not allow a state to make an “end run”
around the intention of the legislation by placing
intellectual property in the hands of another state agency.
(We understand that the possibility of such “end runs” is a
concern of the bill’s proponents. The proposed amendment
would not recognize them.) The amendment would also delay
the effective dates by an additional 12 months, to allow
sufficient time to enact legislation (or other appropriate
form of waiver) at the state level.
The 1980 Bayh-Dole Act has been highly successful in
jump-starting technology transfer and economic development
through universities around the country. The pending
legislation threatens to take this away, and could also
cause productive faculty members to leave state universities
such as ________. Governor ________________, and his
counterparts in other states, have encouraged economic
development by using universities and university-associated
incubators to promote biotechnology and other high
technology businesses. The effect of this bill could be to
kill these nascent efforts before they even have a chance to
get off the ground.
By contrast, if the bill were amended to recognize
waivers of sovereign immunity made by or on behalf of bona
fide state universities such as ___________, then it would
not be nearly so devastating to universities, and the
sovereign immunity waivers sought by the bill’s proponents
are considerably more likely to be granted.
Thank you for looking into this matter, and for
considering the enclosed amendment to the bill.
Very truly yours,
Enclosure
----
(The [Proposed Revised] Bill:)
Intellectual Property Protection Restoration Act of 2002
(Introduced in the Senate)
S 2031 IS
107th CONGRESS
2d Session
S. 2031
To restore Federal remedies for infringements of
intellectual property by States, and for other purposes.
IN THE SENATE OF THE UNITED STATES
March 19, 2002
A BILL [Proposed amendments to the bill are highlighted.]
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 2002'.
(b) REFERENCES-
(1) 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.).
(2) Any reference in this Act to a State university
shall mean a State instrumentality that is an institution of
higher education under 20 U.S.C. 1001; or a land grant
college or university under the First Morrill Act of July 2,
1862 or the Second Morrill Act of August 30, 1890; or a
State instrumentality that is a system that includes more
than one such institution of higher education.
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, 2002
2003, 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)
(1) on or before the date the infringement commenced or
January 1, 2004 2005, 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; or
(2) if a State university is or was at any time the
legal or beneficial owner of such patent, then on or before
the date the infringement commenced or January 1, 2005,
whichever is later, immunity has been waived by or on behalf
of the State university, under the eleventh amendment of the
United States Constitution and under any other doctrine of
sovereign immunity, from suit in Federal court brought
against that State university, 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, 2002 2003; 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, 2004
2005, the court may stay the proceeding for a reasonable
time, but not later than January 1, 2004 2005, 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, 2002 2003, 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)
(1) on or before the date the infringement commenced or
January 1, 2004 2005, 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; or
(2) if a State university is or was at any time the
legal or beneficial owner of such patent, then on or before
the date the infringement commenced or January 1, 2005,
whichever is later, immunity has been waived by or on behalf
of the State university, under the eleventh amendment of the
United States Constitution and under any other doctrine of
sovereign immunity, from suit in Federal court brought
against that State university, 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, 2002 2003; 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, 2004
2005, the court may stay the proceeding
for a reasonable time, but not later than January 1, 2004
2005, 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, 2002 2003, or any right of the
owner of a mark first used in commerce on or after January
1, 2002 2003, 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)
(1) on or before the date the violation commenced or January
1, 2004 2005, 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; or
(2) if a State university is or was at any time the
legal or beneficial owner of such patent, then on or before
the date the infringement commenced or January 1, 2005,
whichever is later, immunity has been waived by or on behalf
of the State university, under the eleventh amendment of the
United States Constitution and under any other doctrine of
sovereign immunity, from suit in Federal court brought
against that State university, 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, 2002 2003; 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, 2004
2005, the court may stay the proceeding
for a reasonable time, but not later than January 1, 2004
2005, 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-
(A) IN GENERAL- Section 296 of title 35,
United States Code, is repealed.
(B) TABLE OF SECTIONS- The table of
sections for chapter 29 of title 35, United States Code, is
amended by striking the item relating to section 296.
(2) AMENDMENTS TO COPYRIGHT LAW-
(A) IN GENERAL- Section 511 of title 17,
United States Code, is repealed.
(B) TABLE OF SECTIONS- The table of
sections for chapter 5 of title 17, United States Code, is
amended by striking the item relating to section 511.
(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)), and 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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