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(18) The petitions were consolidated into a single hearing where UFRF sought, and received, permission from the Board to file a motion to dismiss the petition based on sovereign immunity.
The panel dismissed Covidien's petitions because it determined that "Patent Owner UFRF, as an arm of the State of Florida, [was] entitled to a sovereign immunity defense to the institution of an inter partes review of the challenged patent." (79) The panel first examined sovereign immunity in administrative proceedings by looking to the Eleventh Amendment as well as the Federal Maritime and Vas-Cath decisions.
[t]he parties are entitled to "routine discovery" that includes production of "any exhibit cited in a paper or in testimony must be served with the citing paper or testimony," cross-examination of affidavit testimony prepared for the proceeding, and "information that is inconsistent with a position advanced by the party during the proceeding concurrent with the filing of the documents or things that contain the inconsistency." (98) The panel analyzed whether UFRF had waived its immunity in a manner similar to the University of Missouri in Vas-Cath and determined that UFRF had not taken any action sufficient to constitute waiver.
Finally, the panel examined whether UFRF was an arm of the State of Florida and therefore entitled to sovereign immunity.
UFRF had licensed certain rights to Diamyd Medical, which the latter had then licensed to Ortho-McNeil-Janssen Pharmaceuticals Inc (OMJPI), part of US Johnson & Johnson (NYSE:JNJ).
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