Volume 16
Issue 2
Summer '18

Our Sovereignty, Patently: A Historical Perspective on Fitting Patent Rights with State and Tribal Sovereign Immunity

Written By: James Choi

Abstract

Modern courts recognize state and tribal sovereign immunity defenses asserted against patent lawsuits and IPRs, even while states and tribes can still initiate their own patent lawsuits against private parties. This immunity enables patent arbitrage by local governments in ways unrelated to incentivizing innovation. Tracing the historical conception of popular sovereignty that belongs to We the People, to the growth of state and tribal sovereignties, this Note reviews rationales driving domestic sovereignty as it impacts individual patent rights in the United States, and suggests ways to make domestic sovereignty privileges over patents more consistent with individual rights and Congress’s national innovation policy goals.

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