February 22, 2002

The Honorable Patrick Leahy
Chairman, Committee on Judiciary
United States Senate
Washington, DC 20510

Dear Mr. Chairman:

This letter is being written to express the support of the American Bar Association for the enactment of S. 1611, the "Intellectual Property Protection Restoration Act," which you introduced on November 1, 2001.

The ABA is convinced that Congress must deal with the situation created by the decisions of the United States Supreme Court in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank and College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, and the ABA believes that S. 1611 is an appropriate and well-reasoned response. Those decisions nullified laws enacted in 1990 and 1992 to affirm congressional intent that States not be immune from suit for acts of infringement of intellectual property rights. As a result of these decisions, States now enjoy the full range of protection of federal intellectual property laws for their own patents, copyrights, trademarks, and other intellectual property, while at the same time they are free to infringe IP rights of others without fear of suit for damages.

S. 1611 would remedy this untenable situation by placing States on an equal footing with other intellectual property owners. Recovery of damages for infringement of its own intellectual property rights would be denied to a State unless it has waived immunity from suit for its own acts of infringement of privately-owned intellectual property rights.

The ABA supported congressional efforts a decade ago to clarify States' liability for infringement of intellectual property rights, and we support your current efforts to restore a level playing field for all owners of intellectual property. States should of course have access to legal remedies under federal intellectual property laws to protect state-owned intellectual property. At the same time, fairness dictates that when a State infringes rights of others, it be subject to those same legal remedies. The American Bar Association believes that S. 1611 provides the framework to restore that fair and balanced approach, and we support its enactment.

Sincerely,

Charles P. Baker
Chair, Section of Intellectual Property Law