Patent Law

Infringement Anomaly: States Can Sue But Not Be Sued

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A recent ruling by the U.S. Court of Appeals for the Federal Circuit that preserves state immunity in patent suits—even if the state sues to enforce its own patents—is sparking new debate over the issue.

The appeals court ruled (PDF) late last month against Biomedical Patent Management Corp., which had sued the state of California for royalties on a patented method of screening for birth defects, the Wall Street Journal reports (sub. req.).

California was able to rely on a series of U.S. Supreme Court rulings over the last decade that expanded state sovereign immunity from suits in federal court. In 1999 the court struck down a federal law that had allowed patent suits against the states.

“It’s not fair, but it’s the current state of the law,” said Susan King, a California deputy attorney general who successfully argued the case for the state.

Critics say the decision gives an unfair advantage to the University of California, which frequently sues to enforce its patents. The university has collected about $500 million by licensing its intellectual property in the past five years alone.

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