Subject to few exceptions, Eleventh Amendment sovereign immunity prevents states from being hailed into federal court. Within the context of patent law, where all suits must be brought in federal court, states, including state entities, entitled to sovereign immunity cannot ordinarily be sued for infringement. In the instant case, Covidien LP (“Covidien”) attempted to circumvent the immunity by filing an administrative challenge to Florida’s patents rather than an in-court challenge. However, rather than hearing the challenge, the Patent Trial and Appeal Board Panel (the “panel”) dismissed the petition after holding that sovereign immunity also applies to immunize state actors from inter partes review challenges before the Patent Trial and Appeal Board (the “Board”). This Note argues the panel’s decision was in error because sovereign immunity weakens the patent system by preventing patents that fail to meet the statutory standards from being struck down, thus creating a system in which bad patents can hold entire areas of innovation hostage.
Sword or Shield? The Threat of Sovereign Immunity in Inter Partes Review,
83 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol83/iss3/13