Sovereign Immunity and Patent Infringement, Ten Years after Florida Prepaid: The State of the Law and How It Can Be Fixed

Ten years ago, the United States Supreme Court decided Florida Prepaid Secondary Education Expense Board v. College Savings Bank, a case with far-reaching implications in both patent law and sovereign immunity. With its decision, the Supreme Court reestablished the immunity that states enjoyed against patent infringement suits. The effect was that while states could obtain patents and enforce them against any infringers, private party patent holders could not do the same when states infringe on their patents. Now, more than ever, states are reaping the benefits of the patent system without having to play by the same set of rules that govern other players in the patent arena. This Note briefly describes the history of the Court\u27s Eleventh Amendment jurisprudence, and examines the reasons for its decision in Florida Prepaid. This Note argues that the Court incorrectly decided Florida Prepaid, and suggests several different approaches, which if successful, would once again put all the players on an even playing field