Attorney Article

Revisiting Proposed Solution to State Immunity from IP Suits


May 21, 2020

Author: Sarah Fink

Sarah Fink (Associate-Garden City) authored “Revisiting Proposed Solution to State Immunity from IP Suits,” which appeared in the May 21, 2020, edition of Law360. In the article, Sarah considers the question, “Are States permitted … to run afoul of valid federal laws protecting intellectual property without subjecting themselves to the monetary liability to which all others are vulnerable?” Reaching back 20 years to the origin of the question, Sarah looks at the five possible solutions that were put forth at the time, and suggests that Congress should consider taking action consistent with the fifth proposed solution – conditioning states' exercise of federal intellectual property rights on a waiver of sovereign immunity for infringement suits – or at the very least presenting the idea for public debate.

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