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The result of the sovereign immunity bid mirrored previous cases but we did learn something about the opinions of Justices on the issue, says Gary Frischling of Milbank.
The denial of the petition for panel rehearing or en banc rehearing in Board of Regents of the University of Texas System v Baylor College of Medicine is not surprising.
The original panel opinion followed, with limited discussion, the earlier University of Minnesota decision where panel (Justices Dyk, Wallach and Hughes) held state sovereign immunity did not apply to inter partes reviews (IPRs) because an IPR represents the US government’s reconsideration of its initial patent grant.
The Univ of Minn panel found its reasoning to be in line with St Regis Band of Mohawk v Mylan (Justices Dyk, Moore and Reyna), which held, on similar grounds, that tribal sovereign immunity did not apply to IPRs.
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Patents, sovereign immunity, university, University of Texas, en banc, inter partes review