When your patent is being challenged through Inter Partes Review (IPR), it can be a difficult situation. After years of work on developing your idea, and investing more time and money into getting a patent, receiving notice that someone is challenging your rights as an owner is frustrating.
Developed as part of the America Invents Act, IPR is an attempt to create a more efficient approach to challenging a patent. While there are some drawbacks, the process also prevents abuse of protections.
Here’s what you should know about the role of state sovereignty in Inter Partes Review.
You can’t sue the king
In many areas of law, there is a simple principle that you cannot sue the government. While there are ways to legally challenge actions the government has taken, petitioning the government in a dispute is generally not an option.
When it comes to a patent, states do not have the same protection from claims against them as in other areas. In a recent case concerning the University of Minnesota, the state had sought protection under sovereign immunity, but the Federal Circuit rejected that request.
The case involving the University of Minnesota was about more than being able to “sue the king.” Although not directly at issue in this case, the Court made a point to make another issue clear, “If sovereign immunity barred IPR proceedings against patents obtained by a sovereign, nothing would prevent a state from lending its sovereign immunity to private parties.”
This case makes it clear, not only that state sovereignty is not a way to bypass IPR, but that sovereignty is not a bargaining chip for private parties.