- Published: 27 October 2017 27 October 2017
By Stephen L. Grant, Senior Attorney, Standley Law Group LLP
Using one of the least-understood amendments to the United States Constitution, the Patent Trial and Appeal Board (PTAB) recently found a new immunity for States and their instrumentalities. It is the latest resurrection of a doctrine I have been involved with over most of my career as a lawyer.
Many, including the non-lawyers, will be familiar with the first ten amendments to the Constitution, the so-called “Bill of Rights” that put the Constitution into an acceptable condition to the thirteen erstwhile States. The Eleventh Amendment was introduced about four years after the passage of the Constitution, to overrule the US Supreme Court’s holding in Chisholm v Georgia, 2 US 419 (1793), which held that federal courts have diversity jurisdiction over a suit against a state by a private citizen of another state. It was ratified by the States and became law within four years. Through a series of subsequent cases, including Hans v Louisiana, 134 US 1 (1890), Ex parte Young, 209 US 123 (1908) and Alden v Maine, 527 US 706 (1999), the doctrine has developed further judicially-created aspects. As a result, its scope goes far beyond its original language and it is unfamiliar to many lawyers, much less lay persons.