With the increasing presence of various state arms, like universities and hospitals, involved in research and the licensing of technology, particularly patents, cases concerned with how to apply sovereign immunity to those state related entities are receiving more attention. This increased attention is very evident in the Inter Partes Review proceedings filed in the U.S. Patent and Trademark Office (USPTO) as an alternative to patent litigation in Article III courts.
State assertion of sovereign immunity is not new in federal court patent litigation and recent decisions from the USPTO Patent Trial and Appeal Board (PTAB) appear to signify that state actors will have sovereign immunity protection for a patent challenged in an inter partes review (IPR). In just the first seven months of 2017 the PTAB dismissed three IPRs on the basis of Eleventh Amendment sovereign immunity. The recent PTAB decisions involving sovereign immunity and the implications these decisions are examined below.
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