Jurisdiction and Remedies for Intellectual Property Infringement by National and State Governments
Landslide, May/June 2009
10 Pages Posted: 3 Sep 2008 Last revised: 22 Oct 2010
Date Written: September 1, 2008
This paper considers the availability of relief for sovereign use of intellectual property (IP), primarily in federal courts.
The first, and much shorter, part of the paper considers statutes designed to redress IP infringement by the U.S. government. Despite occasional complexities, their application is usually straight forward.
The second part of the paper addresses infringement by state governments and explains how the Eleventh Amendment limits relief in federal courts. It also explains how exclusive federal jurisdiction may limit the capacity to seek relief in state judicial or administrative proceedings.
Some may find it ironic that injunctive relief, rarely available against the federal government, is generally available to halt state infringement. Conversely, compensation usually available from the federal government, is difficult to impossible to obtain against state governments is federal courts.
Another contrast is that federal contractors are apt to share governmental immunity whereas state contractors do not.
The ultimate conclusion is that IP owners seem able to obtain all the relief for governmental uses that they need, if not all that they desire, in federal courts.
Keywords: intellectual property, federal sovereign immunity, exclusive federal jurisdiction, state sovereign immunity, eleventh amendment, ex parte young
JEL Classification: K40
Suggested Citation: Suggested Citation