Taking TRIPS to the Eleventh Amendment: The Aftermath of the College Savings Cases

This note examines the conflict between Eleventh Amendmentbased state sovereign immunity and Fourteenth Amendment-based congressional power to abrogate that immunity. In 1999, the Supreme Court handed down two opinions that dramatically redefined the relationship between federal government and the states. In the companion intellectual property cases, College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board and Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, the Supreme Court held that Congress had improperly attempted to abrogate the states' sovereign immunity, overruling aspects of the Trademark Remedy Act and Patent Remedy Acts respectively. As a result of these cases, any governmental entity otherwise immune to suit under the Eleventh Amendment can now infringe on a patent, a trademark, and perhaps even copyrighted material, with little fear of being haled into federal court on statutory causes of action.

The author discusses takings, declaratory relief, and procedural due process claims as possible avenues of action that will protect intellectual property from infringement by states and state entities within the confines of the Supreme Court's new rules for sovereign immunity. Legislative alternatives, such as proceeding under Section Five of the Fourteenth Amendment, the spending power, and the treaty power, as well as judicial approaches are discussed. The author then considers an alternative perspective on legislative remedies that Congress could implement.