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December 02, 2008


Robert Z. Cashman

It's good to be the king, but then again it's not good to be crushed after 13 years of working on this project. The question of whether a state which volunteers to participate in a federal court patent action waives its 11th amendment immunity is definitely a good question, but in my opinion it still comes down to be a constitutional law question which should always win, however unfair.

That being said, it made sense to me that it would have been good law to apply the "same parties, same cause of action" distinction (although they typically deal with res judicata and claim preclusion) to preclude the State from hiding behind 11th Amendment immunity, especially when they are the ones that initiated the suit by enforcing their patents. As far as I understood, this was not a new lawsuit, but a countersuit. The government should have been held to answer for their actions because they voluntarily entered into the courts to initiate the action which precipitated this one.

Then again, there were other factors in play. Maybe we'll see some good law come from a future case on this issue.

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