Patent and Plant Variety Protection Remedy Clarification Act
PL 102-560 (S.758), enacted 10/28/1992

106 STAT. 4230 
PUBLIC LAW 102-560—OCT. 28, 1992 
Public Law 102-560 
102d Congress 
An Act 
Oct. 28,1992 
[S. 758] 
Patent and 
Plant V«udety 
Protection 
Remedy 
Clarification 
Act. 
7 use 2321 
note. 
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 Protec-
tion 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 instrumentaUty 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 instrumentahty, officer, or employee, shall 
be subject to the provisions of this title in the same msinner 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: 
**§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, fi*om suit in 
Federal court by any person, including any governmental or non-
governmental 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, ana treble damages under section 284, attorney 
fees under section 285, and the additional remedy for infringement 
of design patents under section 289.". 
(b) CfoNFORMiNG 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 in-
firingement of patents.". 
PUBLIC LAW 102-560—OCT. 28, 1992 
106 STAT. 4231 
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 sub-
section: 
"(b) As used in this section, the term 'perform without authoritjr* 
includes performance 
without 
authority by any State, 
any 
instrumentality of a State, and any officer or employee of a State 
or instrumentahty 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 PROTEC-
TION.—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, 
7 USC 2570. 
AND STATE OFFICIALS FOR INFRINGEMENT OF PLANT 
VARIETY PROTECTION. 
"(a) Any State, any instrumentahty of a State, and any officer 
or employee of a State or instnmientahty 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.". 
106 STAT. 4232 
PUBLIC LAW 102-560—OCT. 28,1992 
7 u s e 2541 
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. 
Approved October 28, 1992. 
LEGISLATIVE HISTORY—S. 758: 
SENATE REPORTS: No. 102-280 (Comm. on the Judiciary). 
CONGRESSIONAL RECORD. Vol. 138 (1992): 
June 12, considered and passed Senate. 
Oct. 3, considered and passed House.