Intellectual Property Law

Supreme Court asks for government's view on whether it should hear sovereign immunity waiver case

By McKee, Voorhees & Sease, P.L.C.

In an order yesterday, the Supreme Court asked the Solicitor General's office to file a brief providing the government's views on whether it should grant certiorari in Biomedical Patent Management Corp. v. California Department of Health Services (No. 07-956).  We previously blogged about the Federal Circuit's decision in this post.  The case deals with whether state agencies waive their Eleventh Amendment immunity from suit by actively enforcing their own patents.  Specifically, the questions presented in the petition are:

1. Whether a state's waiver of Eleventh Amendment immunity in one action extends to a subsequent action involving the same parties and the same underlying transaction or occurrence.
2. Whether a state waives its Eleventh Amendment immunity in patent actions by regularly and voluntarily invoking federal jurisdiction to enforce its own patent rights.

The last time the Court sought the Solicitor General's views on whether certiorari should be granted in patent case, the Solicitor General recommending granting certiorari.  That case was Quanta Computer Inc. v. LG Electronics, Inc., which was argued in January, with a decision still pending.  There is no specific timeframe for the Solicitor General's brief to be filed, but this case may be another to watch given the Court's recent interest in patent law.

Click below for links to the petition for certiorari and related filings.

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Full post as published by FileWrapper on April 22, 2008 (boomark / email).