Leveling the IP Playing Field: Conditional Waiver Theory and the Intellectual Property Protection Restoration Act

Authors

Jason Karasik

Abstract

In 1999 and 2000, a group of federal court decisions ruled that the Eleventh Amendment precludes Congress from holding states and their institutions liable in damages for infringing federal intellectual property protection laws. These rulings have created a marked imbalance in the American intellectual property system, in which states can fully protect their own intellectual property yet freely infringe on the intellectual property rights of others. Private intellectual property owners argue that this imbalance increasingly threatens the health of the American economy. In response, Congressional reformers enacted the Intellectual Property Protection Restoration Act. The legislation uses a conditional waiver scheme to create a strong incentive for states to relinquish their sovereign immunity from damages in infringement suits. The author concludes that, notwithstanding potential problems in its practical implementation, the IPPRA remains a viable solution that will withstand the rigors of modem federalism jurisprudence.

Recommended Citation

Jason Karasik, Leveling the IP Playing Field: Conditional Waiver Theory and the Intellectual Property Protection Restoration Act, 27 UC Law SF Comm. & Ent. L.J. 475 (2005).
Available at: https://repository.uclawsf.edu/hastings_comm_ent_law_journal/vol27/iss3/1