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Holding the Sovereign's Universities Accountable for Patent Infringement after Florida Prepaid and College Savings Bank |
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Jennifer Polse |
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| Two terms ago, the Rehnquist Court’s expanding doctrine of state sovereign immunity finally engulfed federal intellectual property law. After the Court’s decision in Florida Prepaid, states and their universities enjoy broad immunity from suit for violations of the patent law. This ruling comes at a time when state universities, guided by the incentive structure created by the Bayh-Dohl Act, have become increasingly large actors in the patent arena. While Congress must act to curb potential state university abuses of the patent system, it should do so without disrupting the role that federally-funded university research plays in the production of useful inventions. This Comment suggests that Congress should condition receipt of a federal research grant on waiver of sovereign immunity from violations of patent law stemming from the funded research. Such an approach ensures that federal funds cannot be used to violate federal patent law. Moreover, it preserves the Bayh-Dohl Act’s incentive structure, which helps guarantee that the fruits of federally-funded research reach the public that paid for them. | |
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Copyright
© 2001 by California Law Review, Inc. |
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