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ARTICLE · 25 JULY 2017

Are State-Owned Patents Immune From IPRs Under The Eleventh Amendment?

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In separate non-precedential decisions issued by three different panels, the PTAB has permitted state university patent owners to invoke the Eleventh Amendment in Inter Partes Review proceedings.

United StatesIntellectual Property
Courtenay Brinckerhoff
Courtenay Brinckerhoff
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In separate non-precedential decisions issued by three different panels, the PTAB has permitted state university patent owners to invoke the Eleventh Amendment in Inter Partes Review proceedings. Each panel found that IPR proceedings are subject to a sovereign immunity defense, but one panel permitted the IPR to proceed with only the non-university patent owner.

The University of Florida Patents
The PTAB first addressed the Eleventh Amendment in three parallel decisions rendered in Covidien LP v. Univ. of Florida Research Foundation Inc., IPR2016-01274, -01275, -01276 (PTAB Jan. 25, 2017). In those cases, the University of Florida Research Foundation (UFRF) filed motions to dismiss relatively early in the proceedings, before filing a Patent Owner Preliminary Response.

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