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Authors

Charles C. Wong

Abstract

Congress enacted the Patent Remedy Clarification Act (PRCA) in 1992, which authorized patent holders to sue a state for patent infringement in federal court. The PRCA clearly expressed Congress's intent to abrogate Eleventh Amendment state sovereign immunity as required by Atascadero State Hospital v. Scanlon. In 1996, Seminole Tribe v. Florida changed the landscape of congressional power to abrogate state immunity by declaring Congress may do so only if acting pursuant to its powers under section 5 of the Fourteenth Amendment. In his dissent, Justice Stevens forecasted that the Seminole Tribe decision would effectively leave patent holders injured by an infringing state without remedy. Three years later, Justice Stevens's prediction was confirmed. In 1999, the Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank. Court, with little consideration for the constitutional objective “[t]o promote the Progress of Science and useful Arts,” invalidated the PRCA by finding that it was not “appropriate legislation” under section 5 of the Fourteenth Amendment and upheld state immunity as a valid defense to a patent infringement claim. Congress has since considered ways to respond to the Florida Prepaid decision and exercise its constitutional power to promote the progress of science and the useful arts. The aim of this Article is to offer a constitutionally valid legislative action Congress can take to grant a patent owner the right to bring suits against an infringing state.

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