Cite as: 527 U. S. 627 (1999)
Stevens, J., dissenting
(1895). In 1992 Congress clarified that jurisdictional grant by an amendment to the patent law that unambiguously authorizes patent infringement actions against States, state instrumentalities, and any officer or employee of a State acting in his official capacity. Pub. L. 102-560, 106 Stat. 4230, 35 U. S. C. § 271(h). Given the absence of effective state remedies for patent infringement by States and the statutory pre-emption of such state remedies, the 1992 Patent and Plant Variety Protection Remedy Clarification Act (Patent Remedy Act) was an appropriate exercise of Congress' power under § 5 of the Fourteenth Amendment to prevent state deprivations of property without due process of law.
This Court's recent decision in City of Boerne v. Flores, 521 U. S. 507 (1997), amply supports congressional authority to enact the Patent Remedy Act, whether one assumes that States seldom infringe patents, see ante, at 640-641, 645- 646, or that patent infringements potentially permeate an "unlimited range of state conduct," see ante, at 646. Before discussing City of Boerne, however, I shall comment briefly on the principle that undergirds all aspects of our patent system: national uniformity.
I
In his commentaries on the Federal Constitution, Justice Story said of the Patent and Copyright Clauses:
"It is beneficial to all parties, that the national government should possess this power; to authors and invenrisdiction shall be exclusive of the courts of the states in patent, plant variety protection and copyright cases." The second sentence of § 1338(a) (excluding the reference to plant variety protection cases) has been worded in essentially the same way since 1878. See Rev. Stat. § 711 (1878). This Court has used various criteria for determining when an action "arises under" the patent law, see, e. g., Dale Tile Mfg. Co. v. Hyatt, 125 U. S. 46, 52-53 (1888), but it is well established that a patent infringement claim is "the paradigm of an action 'arising under' the patent laws." 8 Chisum, Patents § 21.02[1][b].
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