A number of states currently rely on Eleventh Amendment immunity to defend against infringement actions by the patentees during research and development of new technologies. Some of these states then evoke the federal patent system to exclude private parties from infringing state patented subject matter. Ultimately, states enjoy all of the benefits of the federal patent system but states are not limited by any of its restrictions. This comment proposes a remedy to the states’ unfair tactical advantage of using the federal patent system as both a shield and a sword.
Nicholas Dernik, State Sovereign Immunity: States Use the Federal Patent Law System as Both a Shield and a Sword, 8 J. Marshall Rev. Intell. Prop. L. 134 (2008)