California: No Better Than China In Intellectual Property Rights
The Pathetic Case of Biomedical Patent Management Corporation v. California Department of Health Services
By Erick Posted in California | Patents | Technology | U.S. Patent No. 4,874,693 — Comments (4) / Email this page » / Leave a comment »
Before Congress gets on its high horse again about China stealing American intellectual property, perhaps it or the courts ought to crack down on Little China a/k/a the State of California. It'll be pretty darn hard for us to maintain our credibility otherwise.
Here's the deal. There is a case working its way to the U.S. Supreme Court right now called Biomedical Patent Management Corporation ("BPMC") v. California Department of Health Services. The procedural background is not that important for our purposes, but to give you some, California moved a lawsuit filed against it by BPMC for patent infringement to federal court. The case was dismissed on venue grounds and re-filed. The second time, California claimed it had sovereign immunity and could not be sued on the matter.
Here's the funny party. Since 1990, California has filed 21 patent suits against companies and individuals the state claims have infringed on patents held by the State of California. From 2000 to 2006, California has collected over $900 million from patent lawsuits.
Since 1987, California has been sued at least six times for infringing on the patents of others and it has invoked sovereign immunity, thereby avoiding the lawsuits. There is no doubt that California has infringed on many other patents, but the patent holders did not like their odds in court and walked away without suing. In other words, the state is competing with the private sector through its university research facilities, infringing on private sector patents, then screaming about sovereign immunity when the private sector seeks to enforce its patent rights.
Now, here's where it gets even more humorous or disgusting, depending on your point of view. BPMC holds a patent for a non-invasive prenatal screening for fetal abnormalities. It has licensed its patent to places like the Mayo Clinic and a host of other facilities.
California's Department of Health Services uses BPMC's patented process. Not only will the Department of Health Services not pay BPMC a license, but it is requiring any other person in the state who wants to use BPMC's patented procedure to pay a license to, naturally, the State of California -- shutting BPMC out of its own patent.
If the Supreme Court won't stop California from behaving like Communist China, Congress must act. California's contempt for the free market must be stopped.
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California: No Better Than China In Intellectual Property Rights 4 Comments (0 topical, 4 editorial, 0 hidden) Post a comment »
It will be interesting to see how the Roberts court decides this.
At the center of this case is COLLEGE SAVINGS BANK V. FLORIDA PREPAIDPOSTSECONDARY
Justice Kennedy wrote the dissent and Justice Scolia wrote for the majority, saying in the notes:
As for the suggestion of Justice Breyer that we limit state sovereign immunity to non-commercial state activities because Congress has so limited foreign sovereign immunity, in accord with the “modern trend,” see post, at 6—7 (citing the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1605(a)(2)), see also Justice Stevens’ dissent, post, at 1—2: This proposal ignores the fact that state sovereign immunity, unlike foreign sovereign immunity, is a constitutional doctrine that is meant to be both immutable by Congress and resistant to trends. The text of the Eleventh Amendment, of course, makes no distinction between commercial and non-commercial state activities–and so if we were to combine the dissent’s literalistic interpretation of that Amendment with its affection for FSIA, we would have a “commercial activities” exception for all suits against States except those commenced in federal court by citizens of another State, a disposition that hardly “makes sense,” post, at 6 (Breyer, J., dissenting).
Justice Stevens wrote the dissent not Kennedy. I guess it was just a Freudian slip.
Yeah, I actually think Congress is going to need to settle this.
This was so unbelievable I felt I had to check up on it. Turns out if anything you are being restrained and understating the degree of the offense.
From Patent Baristas
At the very least here you would expect the state to have to apply eminent domain for the taking and render some compensation.
"Those who expect to reap the blessings of freedom must, like men, undergo the fatigue of supporting it."
-Thomas Paine: The American Crisis, No. 4, 1777