Filewrapper®

University Can't Have Its Cake and Eat It Too - Immunity Negated

January 25, 2007
Post by Blog Staff

The University of Missouri's waived its constitutional immunity under the Eleventh Amendment when it fully participated in an interference action against Vas-Cath, Inc. A Vas-Cath patent had issued while the University's application, although filed before the Vas-Cath application, was still pending. The University invoked the procedures to institute an interference between the University's pending application and Vas-Cath's issued patent. The University amended its application by copying into its application all nineteen claims from the Vas-Cath patent, as practice permits. After a six-year interference proceeding, the PTO awarded priority to the University, granting the nineteen Vas-Cath claims to the University and holding that Vas-Cath was not entitled to the patent that it had been issued. Vas-Cath appealed. The University moved to transfer the case to the Western District of Missouri pursuant to 28 U.S.C. ? 1406(a) and then asserted Eleventh Amendment immunity from suit in federal court. On this ground, the district courted granted the University's motion to dismiss. Vas-Cath appealed the dismissal. The Federal Circuit reversed the dismissal and remanded to the district court for further proceedings. By participating in the PTO interference, the Federal Circuit concluded that because judicial review of PTO adjudication is established by statute, the interference proceeding is a multi-part action with appeal as of right. The Court further stated that the appeal is not a new claim, but an authorized phase of the interference proceeding that is conducted by the PTO and is subject to judicial review. Thus, the University waived any potential immunity as to the interference contest in the PTO. To read the full decision in Vas-Cath, Inc. v. Curators of the Univ. of Mo., click here.


Post Categories

Comments (0)
Post a Comment



Captcha Image
Return to the Filewrapper Blog

Search Posts

Purpose

The attorneys of McKee, Voorhees & Sease, P.L.C. designed this blog as an informational and educational resource about intellectual property law for our clients, other attorneys, and the public as a whole. Our goal is to provide cutting-edge information about recent developments in intellectual property law, including relevant case law updates, proposed legislation, and intellectual property law in the news.

Disclaimer

McKee, Voorhees & Sease, P.L.C. provides this blog for general informational purposes only. By using this blog, you agree that the information on this blog does not constitute legal or other professional advice and no attorney-client or other relationship is created between you and McKee, Voorhees & Sease, P.L.C. Do not consider this blog to be a substitute for obtaining legal advice from a qualified, licensed attorney. While we try to revise this blog on a regular basis, it may not reflect the most current legal developments. We consciously refrain from expressing opinions on this blog and instead, offer it as a form of information and education, however if there appears an expression of opinion, realize that those views are indicative of the individual and not of the firm as a whole.

Sign Up For Our Newsletter

Enter your name and email address to receive the latest news and updates from us and our attorneys.

Subscribe to: MVS Newsletter

Subscribe to: Filewrapper® Blog Updates

  I have read and agree to the terms and conditions of McKee, Vorhees & Sease, P.L.C.