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Supreme Court Asked To Review Software Patent Disputes

The Software Information Industry Association wants the court to settle an argument over whether sovereign immunity should shield states from patent lawsuits.

The Software Information Industry Association is urging the U.S. Supreme Court to hear arguments in a case that addresses differences between states and private entities suing over patent infringement.

"There is a fundamental inequity that exists between states and private parties," Mark Bohannon, SIIA's general counsel & SVP for Public Policy, explained while announcing the briefing. "While states are immune from damages for infringement, they are free to sue private sector organizations for violations of intellectual property rights."

In a brief (PDF) filed last week, the group said state governments can use federal courts to sue for patent infringement while resisting federal court authority over intellectual property rights enforcement. The SIIA said that a federal circuit court erred in an analysis of state litigation conduct. The association urged Supreme Court review of BMPG vs. Calif. Dept. of Health Services.

In that case, the federal court determined that sovereign immunity prevented BPMC from suing the California Department of Health Services for patent infringement, while the CDHS disputed the same infringement issues in a separate case against BPMC.

BPMC argued that the state's systematic use of the federal courts to assert its own patent rights amounted to a waiver of sovereign immunity. The federal court rejected that argument.

The U.S. Chamber of Commerce joined the SIIA in filing the amicus brief, saying the case raises "issues of tremendous importance to all owners of intellectual property."

Bohannon said that state agencies and chartered organizations are increasingly suing private sector groups and "using the specter of their immunity in negotiations for licenses to their patents and copyrights."

"States are today major owners of intellectual property and have benefited from federal law and policy to achieve this result," Bohannon said. "As a result of the laws passed by Congress, states are free to file patents and trademarks and, unlike the federal government, are permitted to assert copyright. States are increasingly seeing their intellectual property as strategic assets and utilizing sophisticated licensing management strategies to commercialize their portfolio."

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