Comments on: Federal Circuit: States Have Their Cake and Eat It, Too (At Least With Patent Lawsuits) http://www.patentbaristas.com/archives/2007/11/28/federal-circuit-states-get-their-cake-and-eat-it-too-at-least-with-patent-lawsuits/?utm_source=rss&utm_medium=rss&utm_campaign=federal-circuit-states-get-their-cake-and-eat-it-too-at-least-with-patent-lawsuits Freshly Brewed Bio/Pharma Chat. Served Up Daily. Tue, 07 Feb 2012 11:57:58 +0000 hourly 1 http://wordpress.org/?v=3.3.1 By: Patent Baristas » Can States Have Their (Patent) Cake and Eat It, Too? http://www.patentbaristas.com/archives/2007/11/28/federal-circuit-states-get-their-cake-and-eat-it-too-at-least-with-patent-lawsuits/comment-page-1/#comment-38146 Patent Baristas » Can States Have Their (Patent) Cake and Eat It, Too? Wed, 23 Jan 2008 03:25:05 +0000 http://www.patentbaristas.com/archives/2007/11/28/federal-circuit-states-get-their-cake-and-eat-it-too-at-least-with-patent-lawsuits/#comment-38146 [...] Biomedical Patent Management v. State Of California, the U.S. Court of Appeals for the Federal Circuit held that a state’s initial waiver of Eleventh [...] [...] Biomedical Patent Management v. State Of California, the U.S. Court of Appeals for the Federal Circuit held that a state’s initial waiver of Eleventh [...]

]]> By: EG http://www.patentbaristas.com/archives/2007/11/28/federal-circuit-states-get-their-cake-and-eat-it-too-at-least-with-patent-lawsuits/comment-page-1/#comment-31147 EG Thu, 29 Nov 2007 16:31:44 +0000 http://www.patentbaristas.com/archives/2007/11/28/federal-circuit-states-get-their-cake-and-eat-it-too-at-least-with-patent-lawsuits/#comment-31147 Steve, Let me take back some of what I said about Lemley. He does recognize that the Federal Circuit is stuck because of what the Supreme Court did in Florida Prepaid. But whether what the Supreme Court did in Florida Prepaid is a "travesty of jusice" is still subject to debate. Kelo vs. City of New London is a much more glaring example of a "travesty of justice" by the Supremes. Steve,

Let me take back some of what I said about Lemley. He does recognize that the Federal Circuit is stuck because of what the Supreme Court did in Florida Prepaid. But whether what the Supreme Court did in Florida Prepaid is a “travesty of jusice” is still subject to debate. Kelo vs. City of New London is a much more glaring example of a “travesty of justice” by the Supremes.

]]> By: EG http://www.patentbaristas.com/archives/2007/11/28/federal-circuit-states-get-their-cake-and-eat-it-too-at-least-with-patent-lawsuits/comment-page-1/#comment-31146 EG Thu, 29 Nov 2007 16:25:57 +0000 http://www.patentbaristas.com/archives/2007/11/28/federal-circuit-states-get-their-cake-and-eat-it-too-at-least-with-patent-lawsuits/#comment-31146 Steve, Lemley's comment about a "travesty of justice" regarding 11th Amendment immunity gets no traction from me. The judges, even the district court judge in Biomedical Patents Management, acknowledge the apparent "unfairness" of the states being able to hide behind the 11th Amendment when sued for patent infringement. What Lemley won't acknowledge is that this immunity can be waived (as happened in the Univ. of New Mexico v. Knight and Vas-Cath v. Univ. of Missouri). Also, state officials can still be enjoined from encouraging such infringement under the doctrine of Ex parte Young (you just have to sue the right state official per the Pennington Seed v Produce Exchange case). Given that the Federal Circuit got scorched by the Supreme Court in Florida Prepaid, I'm not surprised they're "gun shy" about straying to far from the 11th Amendment immunity line. And if Lemley thinks this is such a "travesty", may be he should suggest to Congress revoking (in whole or in part) the 11th Amendment (as happened with Prohibition). Steve,

Lemley’s comment about a “travesty of justice” regarding 11th Amendment immunity gets no traction from me. The judges, even the district court judge in Biomedical Patents Management, acknowledge the apparent “unfairness” of the states being able to hide behind the 11th Amendment when sued for patent infringement. What Lemley won’t acknowledge is that this immunity can be waived (as happened in the Univ. of New Mexico v. Knight and Vas-Cath v. Univ. of Missouri). Also, state officials can still be enjoined from encouraging such infringement under the doctrine of Ex parte Young (you just have to sue the right state official per the Pennington Seed v Produce Exchange case). Given that the Federal Circuit got scorched by the Supreme Court in Florida Prepaid, I’m not surprised they’re “gun shy” about straying to far from the 11th Amendment immunity line. And if Lemley thinks this is such a “travesty”, may be he should suggest to Congress revoking (in whole or in part) the 11th Amendment (as happened with Prohibition).

]]> By: kourageThekowardlyDog » Federal Circuit: States Have Their Cake and Eat It, Too (At Least With Patent Lawsuits) http://www.patentbaristas.com/archives/2007/11/28/federal-circuit-states-get-their-cake-and-eat-it-too-at-least-with-patent-lawsuits/comment-page-1/#comment-31000 kourageThekowardlyDog » Federal Circuit: States Have Their Cake and Eat It, Too (At Least With Patent Lawsuits) Wed, 28 Nov 2007 21:49:36 +0000 http://www.patentbaristas.com/archives/2007/11/28/federal-circuit-states-get-their-cake-and-eat-it-too-at-least-with-patent-lawsuits/#comment-31000 [...] Check it out! While looking through the blogosphere we stumbled on an interesting post today.Here’s a quick excerpt In Biomedical Patent Management Corporation v. State Of California, Department Of Health Services (06-1515), the U.S. Court of Appeals for the Federal Circuit held that a state’s initial waiver of Eleventh Amendment sovereign immunity – when it intervened in an earlier, related action that was dismissed for improper venue — doesn’t mean that it waived sovereign immunity under the Eleventh Amendment in a later case. Biomedical Patent Management Corp. sued the state’s Department of Health Servic [...] [...] Check it out! While looking through the blogosphere we stumbled on an interesting post today.Here’s a quick excerpt In Biomedical Patent Management Corporation v. State Of California, Department Of Health Services (06-1515), the U.S. Court of Appeals for the Federal Circuit held that a state’s initial waiver of Eleventh Amendment sovereign immunity – when it intervened in an earlier, related action that was dismissed for improper venue — doesn’t mean that it waived sovereign immunity under the Eleventh Amendment in a later case. Biomedical Patent Management Corp. sued the state’s Department of Health Servic [...]

]]> By: kajun36 » Federal Circuit: States Have Their Cake and Eat It, Too (At Least With Patent Lawsuits) http://www.patentbaristas.com/archives/2007/11/28/federal-circuit-states-get-their-cake-and-eat-it-too-at-least-with-patent-lawsuits/comment-page-1/#comment-30999 kajun36 » Federal Circuit: States Have Their Cake and Eat It, Too (At Least With Patent Lawsuits) Wed, 28 Nov 2007 21:45:37 +0000 http://www.patentbaristas.com/archives/2007/11/28/federal-circuit-states-get-their-cake-and-eat-it-too-at-least-with-patent-lawsuits/#comment-30999 [...] Check it out! While looking through the blogosphere we stumbled on an interesting post today.Here’s a quick excerpt In Biomedical Patent Management Corporation v. State Of California, Department Of Health Services (06-1515), the U.S. Court of Appeals for the Federal Circuit held that a state’s initial waiver of Eleventh Amendment sovereign immunity – when it intervened in an earlier, related action that was dismissed for improper venue — doesn’t mean that it waived sovereign immunity under the Eleventh Amendment in a later case. Biomedical Patent Management Corp. sued the state’s Department of Health Servic [...] [...] Check it out! While looking through the blogosphere we stumbled on an interesting post today.Here’s a quick excerpt In Biomedical Patent Management Corporation v. State Of California, Department Of Health Services (06-1515), the U.S. Court of Appeals for the Federal Circuit held that a state’s initial waiver of Eleventh Amendment sovereign immunity – when it intervened in an earlier, related action that was dismissed for improper venue — doesn’t mean that it waived sovereign immunity under the Eleventh Amendment in a later case. Biomedical Patent Management Corp. sued the state’s Department of Health Servic [...]

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