California: No Better Than China In Intellectual Property Rights

Before Congress gets on its high horse again about China stealing American intellectual property, perhaps it or the courts ought to crack down on Little China a/k/a the State of California. It’ll be pretty darn hard for us to maintain our credibility otherwise.

Here’s the deal. There is a case working its way to the U.S. Supreme Court right now called Biomedical Patent Management Corporation (“BPMC”) v. California Department of Health Services. The procedural background is not that important for our purposes, but to give you some, California moved a lawsuit filed against it by BPMC for patent infringement to federal court. The case was dismissed on venue grounds and re-filed. The second time, California claimed it had sovereign immunity and could not be sued on the matter.

Here’s the funny party. Since 1990, California has filed 21 patent suits against companies and individuals the state claims have infringed on patents held by the State of California. From 2000 to 2006, California has collected over $900 million from patent lawsuits.

Since 1987, California has been sued at least six times for infringing on the patents of others and it has invoked sovereign immunity, thereby avoiding the lawsuits. There is no doubt that California has infringed on many other patents, but the patent holders did not like their odds in court and walked away without suing. In other words, the state is competing with the private sector through its university research facilities, infringing on private sector patents, then screaming about sovereign immunity when the private sector seeks to enforce its patent rights.

Now, here’s where it gets even more humorous or disgusting, depending on your point of view. BPMC holds a patent for a non-invasive prenatal screening for fetal abnormalities. It has licensed its patent to places like the Mayo Clinic and a host of other facilities.

California’s Department of Health Services uses BPMC’s patented process. Not only will the Department of Health Services not pay BPMC a license, but it is requiring any other person in the state who wants to use BPMC’s patented procedure to pay a license to, naturally, the State of California — shutting BPMC out of its own patent.

If the Supreme Court won’t stop California from behaving like Communist China, Congress must act. California’s contempt for the free market must be stopped.

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Erick Erickson

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