COLLEGE SAV. BANK v. FLA. PREPAID EDUC. EXPENSE BD.

No. 97-1246.

148 F.3d 1343 (1998)

COLLEGE SAVINGS BANK, Plaintiff-Appellee, and United States, Plaintiff-Appellee, v. FLORIDA PREPAID POSTSECONDARY EDUCATION EXPENSE BOARD, Defendant-Appellant.

United States Court of Appeals, Federal Circuit.

June 30, 1998.


Attorney(s) appearing for the Case

Kevin J. Culligan, Fish & Neave, New York City, argued for plaintiff-appellee College Savings Bank. Of counsel on the brief were Steven C. Cherny and Robert W. Morris. Also of counsel was Arnold B. Calmann, Saiber, Schlesinger, Satz & Goldstein, Newark, New Jersey.

Michael S. Raab, Civil Division, Appellate Staff, U.S. Department of Justice, Washington, DC, argued for plaintiff-appellee United States. With him on the brief were Frank W. Hunger, Assistant Attorney General, and Mark B. Stern. Of counsel was Michael E. Robinson.

Anne S. Mason, Mason & Associates, Clearwater, Florida, argued for defendant-appellant. With her on the brief was Joseph C. Mason, Jr. Of counsel was Louis F. Hubener, Assistant Attorney General, Office of the Attorney General, The Capitol, Tallahassee, Florida.

Edward V. Filardi, White & Case, New York City, for amicus curiae New York Intellectual Property Law Association. Of counsel on the brief was Charles P. Baker, Fitzpatrick, Cella, Harper & Scinto, New York City.

Joseph R. Re, Knobbe, Martens, Olson, & Bear, Newport Beach, California, for amicus curiae American Intellectual Property Law Association. With him on the brief was Michael K. Friedland.

Gerald P. Dodson, Arnold, White & Durkee, Menlo Park, California, for amicus curiae Regents of the University of California. With him on the brief were Emily A. Evans, and Richard L. Stanley, Houston, Texas. Of counsel on the brief was P. Martin Simpson, Jr., University of California, Office of Technology Transfer, Alameda, California.

Toni Hunter, Chief, General Litigation Division, Capitol Station, Austin, Texas, for amicus curiae the Commonwealth of Pennsylvania, Commonwealth of Virginia, State of Kansas, State of Louisiana, State of Nevada, State of Oklahoma, and State of Texas.

Before CLEVENGER, RADER, and BRYSON, Circuit Judges.


CLEVENGER, Circuit Judge.

This case requires us to determine whether the Eleventh Amendment bars a federal suit for patent infringement against a non-consenting state. The district court held that it did not and denied Florida Prepaid Postsecondary Education Expense Board's (Florida Prepaid's) motion to dismiss for lack of subject matter jurisdiction. Because Congress clearly expressed its intent to abrogate state sovereign immunity for patent infringement suits brought...

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