Economic Implications of State Sovereign Immunity from Infringement of Federal Intellectual Property Rights

Abstract

In the aftermath of the Supreme Court's decisions constraining Congress' ability to abrogate state sovereign immunity, Professor Peter S. Menell examines the propensity of states and state actors to infringe federal intellectual property rights, the viability of alternative means of protecting federal intellectual property rights, and potential implications of the Supreme Court's decisions for international intellectual property diplomacy. He concludes that although state sovereign immunity for violations of federal intellectual property rights is unlikely to impair the rights of intellectual property owners because of a broad array of legal, market, social, and political restraints upon states and state actors, such immunity could violate international treaty obligations and complicate foreign diplomacy. These latter concerns potentially provide an alternative basis for congressional abrogation of state sovereign immunity for infringement of federal intellectual property rights.