Promoting Public Health Through State Sovereign Immunity

4 J. L. & INNOV. 1 (2021)

24 Pages Posted: 18 May 2021 Last revised: 5 Jan 2022

See all articles by Sapna Kumar

Sapna Kumar

University of Minnesota Law School

Date Written: November 1, 2021


During the COVID-19 outbreak, the United States experienced widespread shortages of patented drugs and goods. But although states negotiated with foreign governments to obtain needed medical equipment, they were seemingly powerless to obtain or produce their own supply of scarce drugs. This Essay proposes an unorthodox solution to drug shortages during public health emergencies: states could disregard the Patent Act and directly produce or import needed patented drugs. The doctrine of state sovereign immunity shields states from having to pay damages when they violate federal law, including patent law. Moreover, courts and agencies are generally unwilling to award injunctions or other prospective relief if it disserves the public interest. State action is admittedly not a perfect solution to patent-related drug shortages and comes with a variety of costs and risks, including retaliation from the U.S. Food & Drug Administration. But at minimum, it could serve as a means for pressuring the federal government and pharmaceutical companies to work to provide drugs to the public.

Keywords: state sovereign immunity, public health, patents

Suggested Citation

Kumar, Sapna, Promoting Public Health Through State Sovereign Immunity (November 1, 2021). 4 J. L. & INNOV. 1 (2021) , Available at SSRN: or

Sapna Kumar (Contact Author)

University of Minnesota Law School ( email )

United States

Do you have negative results from your research you’d like to share?

Paper statistics

Abstract Views
PlumX Metrics