Patent Rights and State Immunity

Federal Circuit Bar Journal, Vol. 28, No. 1, 2018

Posted: 13 Mar 2019

See all articles by William J. Rich

William J. Rich

Washburn University - School of Law

Date Written: 2018


Can patent holders bring infringement claims for monetary damages against state universities? The Patent Remedy Clarification Act of 1992 indicated that the answer to that question should be yes. Seven years later, however, the Supreme Court rejected that argument, holding that the Patent Clause of the Constitution did not empower Congress to abrogate state sovereign immunity protected by the 11th Amendment. Arguments not yet considered by the courts, however, provide alternative grounds for rejecting state immunity in patent cases. Historical treatment by courts and commentators, including recent Supreme Court opinions, support the conclusion that patent rights exemplify a category of “privileges” that “owe their existence to the Federal government ... its Constitution, or its laws.” As such, they should receive protection under the Privileges or Immunities Clause of the 14th Amendment which empowers Congress to override state immunity. Furthermore, in rejecting Patent Clause authority to abrogate state immunity, courts ignored an alternative argument based upon exclusive national authority to conduct foreign affairs. International treaties provide a framework for patent protection, and U.S. negotiators can only strengthen enforcement of patent rights against government actors from other nations if patent holders have the authority to enforce their claims against state actors within this country. This exercise of foreign affairs power provides an independent basis for congressional abrogation of state immunity.

Suggested Citation

Rich, William J., Patent Rights and State Immunity (2018). Federal Circuit Bar Journal, Vol. 28, No. 1, 2018, Available at SSRN:

William J. Rich (Contact Author)

Washburn University - School of Law ( email )

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