654
Stevens, J., dissenting
which clarified Congress' intent to subject state infringers to suit in federal court, may be applied to willful infringement.5
As I read the Court's opinion, its negative answer to that question has nothing to do with the facts of this case. Instead, it relies entirely on perceived deficiencies in the evidence reviewed by Congress before it enacted the clarifying amendment. "In enacting the Patent Remedy Act . . . Congress identified no pattern of patent infringement by the States, let alone a pattern of constitutional violations." Ante, at 640.
It is quite unfair for the Court to strike down Congress' Act based on an absence of findings supporting a requirement this Court had not yet articulated. The legislative history of the Patent Remedy Act makes it abundantly clear that Congress was attempting to hurdle the then-most-recent barrier this Court had erected in the Eleventh Amendment course—the "clear statement" rule of Atascadero State Hospital v. Scanlon, 473 U. S. 234 (1985).6
5 As a practical matter, infringement actions based on mere negligence rarely arise. Most patent infringers are put on notice that their conduct may be actionable before an infringement suit is filed. "The first step in enforcing a patent is usually to send a cease-and-desist or charge-of-infringement letter." Pokotilow & Siegal, Cease and Desist Letters: The Legal Pitfalls for Patentees, 4 Intellectual Property Strategist, No. 3, p. 1 (1997).
6 The Chairman of the House Subcommittee considering the Patent Remedy Act, Representative Kastenmeier, engaged in the following dialogue with William Thompson, President of the American Intellectual Property Law Association, about whether States were definitively immune from suit under the Eleventh Amendment following the Federal Circuit's recent decision in Chew v. California, 893 F. 2d 331 (1990):
"Mr. Kastenmeier. You mentioned that you do not see the likelihood of further cases in this area since the Atascadero and Chew cases seem to be fairly definitive on this question, unless there were in fact remedial legislation. Do you anticipate that remedial legislation, such as the bill before us, if passed into law, would be the subject of litigation?
"Mr. Thompson. No, I think it would be very clear. Your legislation is very clearly drawn. It seems to match the tests set forth in Atascadero
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