Federal Circuit to Consider PTAB Sovereign Immunity Defense

State-affiliated entities enjoy immunity from suit in federal courts under the 11th amendment. To date, a handful of such entities have successfully leveraged the same immunity theory to avoid review of their patents before the Patent Trial & Appeal Board (PTAB). While still other Patent Owners have aligned themselves with Native American Tribes in an effort to benefit from their sovereign status in the hopes of avoiding PTAB review.

More recently, in Ericsson v. Regents of the University of Minnesota.the PTAB has determined that sovereign immunity is waived where the sovereign entity files an infringement suit. (here)

Appeal was taken from this decision this week.
Continue Reading PTAB Sovereign Immunity Dispute Heads to CAFC