S.758
One Hundred Second Congress of the United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Friday, the third day of
January,
one thousand nine hundred and ninety-two
An Act
To clarify that States, instrumentalities of States, and officers and
employees of States acting in their official capacity, are subject to suit
in Federal court by any person for infringement of patents and plant variety
protections, and that all the remedies can be obtained in such suit that
can be obtained in a suit against a private entity.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Patent and Plant Variety Protection
Remedy Clarification Act'.
SEC. 2. LIABILITY OF STATES, INSTRUMENTALITIES OF STATES, AND STATE
OFFICIALS FOR INFRINGEMENT OF PATENTS.
(a) LIABILITY AND REMEDIES- (1) Section 271 of title 35, United States
Code, is amended by adding at the end the following:
`(h) As used in this section, the term `whoever' includes any State,
any instrumentality of a State, and any officer or employee of a State
or instrumentality of a State acting in his official capacity. Any State,
and any such instrumentality, officer, or employee, shall be subject to
the provisions of this title in the same manner and to the same extent
as any nongovernmental entity.'.
(2) Chapter 29 of title 35, United States Code, is amended by adding
at the end the following new section:
`Sec. 296. Liability of States, instrumentalities of States, and State
officials for infringement of patents
`(a) IN GENERAL- Any State, any instrumentality of a State, and any
officer or employee of a State or instrumentality of a State acting in
his official capacity, shall not be immune, under the eleventh amendment
of the Constitution of the United States or under any other doctrine of
sovereign immunity, from suit in Federal court by any person, including
any governmental or nongovernmental entity, for infringement of a patent
under section 271, or for any other violation under this title.
`(b) REMEDIES- In a suit described in subsection (a) for a violation
described in that subsection, remedies (including remedies both at law
and in equity) are available for the violation to the same extent as such
remedies are available for such a violation in a suit against any private
entity. Such remedies include damages, interest, costs, and treble damages
under section 284, attorney fees under section 285, and the additional
remedy for infringement of design patents under section 289.'.
(b) CONFORMING AMENDMENT- The table of sections at the beginning of
chapter 29 of title 35, United States Code, is amended by adding at the
end the following new item:
`Sec. 296. Liability of States, instrumentalities of States, and State
officials for infringement of patents.'.
SEC. 3. LIABILITY OF STATES, INSTRUMENTALITIES OF STATES, AND STATE
OFFICIALS FOR INFRINGEMENT OF PLANT VARIETY PROTECTION.
(a) INFRINGEMENT OF PLANT VARIETY PROTECTION- Section 111 of the Plant
Variety Protection Act (7 U.S.C. 2541) is amended--
(1) by inserting `(a)' before `Except as otherwise provided'; and
(2) by adding at the end thereof the following new subsection:
`(b) As used in this section, the term `perform without authority' includes
performance without authority by any State, any instrumentality of a State,
and any officer or employee of a State or instrumentality of a State acting
in his official capacity. Any State, and any such instrumentality, officer,
or employee, shall be subject to the provisions of this Act in the same
manner and to the same extent as any nongovernmental entity.'.
(b) LIABILITY OF STATES, INSTRUMENTALITIES OF STATES, AND STATE OFFICIALS
FOR INFRINGEMENT OF PLANT VARIETY PROTECTION- Chapter 12 of the Plant Variety
Protection Act (7 U.S.C. 2561 et seq.) is amended by adding at the end
thereof the following new section:
`SEC. 130. LIABILITY OF STATES, INSTRUMENTALITIES OF STATES, AND STATE
OFFICIALS FOR INFRINGEMENT OF PLANT VARIETY PROTECTION.
`(a) Any State, any instrumentality of a State, and any officer or
employee of a State or instrumentality of a State acting in his official
capacity, shall not be immune, under the eleventh amendment of the Constitution
of the United States or under any other doctrine of sovereign immunity,
from suit in Federal court by any person, including any governmental or
nongovernmental entity, for infringement of plant variety protection under
section 111, or for any other violation under this title.
`(b) In a suit described in subsection (a) for a violation described
in that subsection, remedies (including remedies both at law and in equity)
are available for the violation to the same extent as such remedies are
available for such a violation in a suit against any private entity. Such
remedies include damages, interest, costs, and treble damages under section
124, and attorney fees under section 125.'.
SEC. 4. EFFECTIVE DATE.
The amendments made by this Act shall take effect with respect to
violations that occur on or after the date of the enactment of this Act.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.