Eleventh Amendment

News & Analysis as of

Issue Two: Keeping Tabs on the PTAB

The availability of post-grant proceedings at the Patent Trial and Appeal Board (PTAB) has changed the face of patent litigation. This monthly digest is designed to keep you up-to-date by highlighting interesting PTAB,...more

State Universities Gain Immunity from IPRs

State Universities Gain Immunity from IPRs - Today, many universities own extensive patent portfolios that are managed by sophisticated tech transfer offices. Universities obtain these patents for many reasons, not the...more

State Universities Rejoice: PTAB Recognizes Sovereign Immunity Defense

In Covidien LP v. University of Florida Research Foundation Inc., the Patent Trial and Appeal Board (the “Board”) upheld a defense of sovereign immunity asserted by the University of Florida Research Foundation (the...more

PTAB Applies State Sovereign Immunity in IPR

On January 25, 2017, the Patent Trial and Appeal Board dismissed three petitions filed by Covidien LP challenging U.S. Patent No. 7,062,251 (the “’251 patent”) owned by the University of Florida Research Foundation Inc....more

PTAB Denies IPR Petition Against the State of Florida Due to 11th Amendment Sovereign Immunity

In Covidien LP v. University of Florida Research Foundation Incorporated, IPR2016-01274, -01275, -01276 (January 2017), the Patent Trial and Appeal Board held that Eleventh Amendment sovereign immunity applies to inter partes...more

PTAB Declares that State-Owned Patents are Immune from IPR Challenges

A panel of the Patent Trial and Appeal Board (PTAB) recently issued a decision that could significantly strengthen patent portfolios of public universities and other state entities. In Covidien LP v. University of Florida...more

PTAB Dismisses Three IPR Petitions Based on Sovereign Immunity

Covidien LP had a license to U.S. Patent 7,062,251, owned by the University of Florida Research Foundation (UFRF, Patent Owner). UFRF alleged breach of contract by Covidien, and sued Covidien in Florida state court for...more

Eighth Circuit Dismisses Interlocutory FCA Appeal for Lack of Jurisdiction

In this April 2016 decision, the Eighth Circuit held that it lacked jurisdiction to consider the appeal of a two-state agency seeking review of a denial of its motion for summary judgment. Below the two-state agency had...more

Sovereign Immunity of State Universities: Can It Shield Them from AIA Patent Challenges?

In what appears to be a case of first impression, the PTAB is poised to rule on the question of whether state sovereign immunity prevents an IPR challenge from being maintained against a University of Florida (“UF”) patent...more

First Circuit Adopts “Arm of the State” Test to Affirm Dismissal of FCA Complaint

In January 2016 in a matter of first impression, the First Circuit held that the University of Massachusetts Medical School is a state agency, and therefore not a “person” subject to liability in a False Claims Act (“FCA”)...more

Ninth Circuit Holds Section 1983 First Amendment Retaliation Claim Not Necessarily Precluded By Age Discrimination in Employment...

On August 5, 2016, the U.S Court of Appeals for the Ninth Circuit held that the Age Discrimination in Employment Act (ADEA) does not preclude a First Amendment retaliation claim under section 1983 of the federal Civil Rights...more

Sixth Circuit Joins Sister Circuits In Using Arm-Of-The-State Analysis To Define “Person” Under The False Claims Act

The FCA imposes liability on “any person” that makes a false statement in violation of the Act, 31 U.S.C. § 3729(a)(1). Although the Act itself does not define “person,” the Supreme Court has said only that a person cannot...more

Going on Offense against State Deceptive Trade Practices AG Actions

We have posted many times about cases where a manufacturer of a regulated product is sued over alleged violations of a state consumer protection or deceptive trade practices act because of something allegedly amiss in the...more

The UNC Former Student-Athletes’ Litigation: The Defense Enters the Field

We wrote last month about the lawsuit filed against the University of North Carolina and the NCAA by former UNC student-athletes Rashanda McCants and Devon Ramsey....more

Gaming Legal News: Volume 8, Number 5: North Fork Tribe Sues State For Compact In Latest Chapter Of Gaming Saga

By the summer of 2014, it appeared that the North Fork Rancheria of Mono Indians of California had finally made it over the last hurdle to begin construction of a Class III casino with 2,000 slot machines and 40 gaming tables...more

BB&K Police Bulletin: California Court of Appeal Clarifies Eleventh Amendment Immunity for State Officials

Court Holds Sheriff Not Subject to Damages Under Section 1983 - Overview: The California Court of Appeal clarified that the Eleventh Amendment immunity does not apply in civil rights actions brought in California...more

Supreme Court Asked If State Universities Are Exempt From Claims Under the False Claims Act

A professor at the University of Texas Health Science Center has petitioned the U.S. Supreme Court to determine the standard for imposing liability on state universities (and their related entities, such as hospitals and...more

CalPERS Files Amicus Brief In Titanomachy With San Bernardino

In its filing, CalPERS outlines why the 11th Amendment to the U.S. Constitution protects State agencies, like the Pension Fund, from being haled into federal court against their will by a municipality, which is a creation of...more

Another Possible Battleground for Defending University Intellectual Property - Inter Partes Review

Over the last several months, universities and technology transfer programs have increasingly become the target of petitions for Inter Partes Review (IPR) filings. Effective September 16, 2012, IPR proceedings allow parties...more

PK Law Attorneys Successfully Defend Charles County Board Against Multi-Million Dollar Wage and Hour Lawsuit

In a wage and hour class action suit that was filed in Maryland’s federal district court, bus drivers and bus assistants sued under the Fair Labor Standards Act (“FLSA”), 29 U.S. C. Section 201 et seq., for back-pay,...more

A Reduction in the Utility of Civil Investigative Demands and the Interpretive Narrowing of "Person" under the False Claims Act

Executive Summary: False Claims Act actions against government contractors are on the rise. But two recent decisions offer potential limitations to false claims exposure, and may aid defendants in future FCA litigation....more

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