Not surprisingly, at state university technology transfer officials, who oversee the licensing of university patents to private industry, oppose the bill. A letter drafted by Louisiana State University says the university supports efforts to close the lawsuit loophole, but takes issue with Leahy’s plan because the bill would require a whole state-not just a state university-to waive sovereign immunity or face penalties. “If a state research university were unable to convince its legislature to consent to any and all infringement suits against the state highway department, state hospital and all other branches to state government,” it says, “then that university would effectively be shut out of technology transfer and development.”Opponents to the bill say that’s exactly what will happen. No state will agree to waive its sovereign immunity, writes Janet E. Scholz, president of the Association of University Technology Managers, in a letter the Committee of the Judiciary.
Scholz’s organization has requested an amendment to the bill that would allow a state university to waive its own sovereign immunity-but not the entire state’s. With this adjustment, says Mani Iyer, director of the Office of Intellectual Property at Louisiana State University, “[t]he bill would then be more likely to achieve its goal-a level playing field for those who actually play the technology transfer game.”
Many of those in favor of the Leahy bill, however, aren’t sympathetic to universities. They see the Act as an overdue remedy for a blatantly unfair situation, in which states have been enjoying all the privileges of intellectual property protection without assuming any of the liabilities. The bill has the support of the American Bar Association, the American Intellectual Property Law Association, the Intellectual Property Owners Association and the International Trademark Association.
And then there are supporters like Andelman, inventors who claim to have been ripped off without recourse. But no one is sure of their number. The General Accounting Office, Congress’s investigative arm, published a report in September 2001, concluding-with almost painful neutrality-that the 58 examples of lawsuits it had gathered involving infringement accusations against states were neither too many to characterize a pattern of transgression nor too few to halt further investigation. To date, no comprehensive study has been done. Which raises the question: exactly how serious and widespread is this problem?
At the very least, there’s a systemic flaw that’s beginning to fester-not only among patents, but in all forms of intellectual property, including trademarks and copyrights. Register of Copyrights Marybeth Peters told the House Subcommittee on Courts and Intellectual Property in July, 2000: “Clearly, states are availing themselves of the copyright protection provided by federal law.” She also said a June 1998 report by the Copyright Office had “cited several instances of alleged copyright infringement by states that had been brought to the Office’s attention.”
“What appears certain,” said Peters, “is that as long as states remain immune from suits for damages from infringement of copyrights and other intellectual property rights, states are likely to be tempted to infringe and the number of actual infringements by states is likely to increase.”