Through the Vas-Cath Lens: A Brief Look at the Interaction of the Eleventh Amendment and Patent Interference Proceedings

Abstract

On January 23, 2007, the Court of Appeals for the Federal Circuit in Vas-Cath, Inc. v. Board of Curators of the University of Missouri removed a brick from this sovereign immunity wall when it held that a state university waived its Eleventh Amendment immunity by participating in a patent interference proceeding. This paper will argue that the Federal Circuit incorrectly applied previous Supreme Court precedent in finding a waiver of state sovereign immunity, and that its decision will likely be overruled by the Supreme Court if it grants certiorari under 28 U.S.C. § 1254. Part I briefly explains both interference proceedings and the Eleventh Amendment, specifically noting the impact of the Eleventh Amendment in the field of patent law. Part II sets out the background of the Vas-Cath case. Part III explains the decision of the Western District of Missouri, which found that the Eleventh Amendment was a bar to an appeal of an interference proceeding. Part IV examines the Federal Circuit's decision that reversed the district court's decision and found that the state had waived its sovereign immunity. Finally, Part V analyzes the reasons for which the Federal Circuit's decision was incorrect and why the Supreme Court will likely overturn this decision, should it grant certiorari. An additional purpose of this paper was to follow any filings by either party since the January 2007 decision, but as of May 7, 2007 no activity has taken place in this case.