The landscape changed dramatically in June 1999, however, when the Supreme Court ruled in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank that states could claim immunity under the Eleventh Amendment to the U.S. Constitution when sued in federal court for infringement. Our analysis of published case law and surveys of the states identified 58 lawsuits since January 1985 alleging infringement or unauthorized use of intellectual property by state entities. Waiver of Eleventh Amendment Immunity

We did not identify any infringement lawsuits in which state defendants had voluntarily waived their immunity in federal court. No Proven State Cause of Action for Patents and Copyrights

Because patent and copyright infringement suits must be brought in federal court, an intellectual property owner wishing to bring a suit in state court for the unauthorized use of intellectual property—regardless of whether the defendant is a state—would have to bring the case under some cause of action other than infringement. Relatively few accusations of infringement against states appear to have been made in the past, and there is no way to ascertain whether the states will be less diligent now that they know they cannot be sued for damages in federal court. If the Congress does consider legislation, it may want to clarify that states are subject to federal intellectual property law and, as such, are still capable of committing infringement. Our objectives were to (1) determine the extent to which states have been accused of intellectual property infringement, (2) identify the alternatives or remedies available to protect intellectual property owners against state infringement after the Florida Prepaid ruling, and (3) obtain the views of the intellectual property community on what states should and could do, if anything, to protect the rights of intellectual property owners against infringement.
What GAO Found

Intellectual property--which includes federally granted patents, trademarks, and copyrights--is often owned or used by state governmental entities, such as public institutions of higher education. Until recently, state entities that made unauthorized use of, or "infringed," the intellectual property of others were subject to lawsuits in federal court. In 1999, however, the U.S. Supreme Court held that states were not subject to such suits, striking down a federal law that would have taken away a state's right to claim immunity under the Eleventh Amendment of the U.S. Constitution when sued in federal court for patent infringement. Some intellectual property owners are concerned that they no longer have adequate remedies if a state commits infringement. Although the precise number is difficult to determine, few accusations of intellectual property infringement appear to have been made against the states through either lawsuits or matters handled out of court. GAO identified 58 lawsuits that had been active since January 1985 in either a state or federal court in which a state was a defendant in an action involving the unauthorized use of intellectual property. Intellectual property owners appear to have few proven alternatives or remedies against state infringement available if they cannot sue the states for damages in federal court. States are not likely to waive their immunity voluntarily, and, in some cases, their own laws may prohibit them from doing so. The intellectual property community is divided on what, if anything, states should and could do to protect the rights of intellectual property owners against state infringement.