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Let’s Take a Trip To Patent Land!

Publication Date: 
October 26, 2007
The Wall Street Journal Law Blog
Peter Lattman

The Wall Street Journal's Law Blog picked up Professor Mark Lemley's analysis of the decision in the case of Biomedical Patent Management Corp. vs. California's Department of Health Services:

...The biggest news of the week came out of the Federal Circuit, which on Tuesday upheld the dismissal of a patent-infringement lawsuit against California, based on a sovereign immunity defense. Here’s the opinion, and a story from the Recorder.

Biomedical Patent Management Corp. sued the state’s Department of Health Services last year, claiming the state was infringing on a patent for a birth-defect screening method. At the trial court Judge Marilyn Hall Patel dismissed the lawsuit, but expressed concern over the fact that California could sue for patent infringement but use sovereign immunity to prevent it from being sued for the same thing. “The court is indeed troubled by the University of California’s ability to reap the benefits of a patent system without being exposed to liability for infringement,” she wrote. “Similarly situated private universities enjoy no such advantage.”


Last night we checked in with a neutral party, Stanford Law’s IP guru Mark Lemley, who expressed dismay over the court’s ruling but said it was all about stare decisis. “The fact that states can sue for patent infringement but are immune from being sued by others is a travesty of justice that should have been remedied long ago,” Lemley wrote us in an email. “But it’s the Supreme Court’s travesty — the Federal Circuit decision was just following the Supreme Court’s rule.”