In 2000, Todd Dickinson testified before Congress that the state immunity from patent infringement was unfair – especially because states are such major players in the patent system. Since then the situation has become even more dramatic. States and their entities (largely university systems) have obtained thousands of patents and have recovered hundreds of millions of dollars in royalties.
In his testimony, the then PTO director suggested what he saw as a “reasonable and equitable approach” to condition the ability of state institutions to obtain federal protection of intellectual property on their waive of sovereign immunity for patent infringement.
“A legislative solution which elicits state waiver of sovereign immunity in exchange for the right to own federally-protected intellectual property must respect, and be in harmony with, the commercialization goals of the Bayh-Dole legislation.”
Clearly, this type of activity is anti-federalist, but it is not far afield from current practices in other areas of government.