"Constitutions are intended to preserve practical and substantial rights, not to maintain theories."1
-OLIVER WENDELL HOLMES, JR.
Public policy and fairness mandate that the states should not be immune from federal court suits arising under the patent laws. Whether the federal Constitution authorizes Congress to abrogate state immunity in patent actions, however, is a more complex issue.
In Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank2 the United States Supreme Court invalidated the Patent and Plant Variety Protection Remedy Clarification Act, which purported to make the states amenable to patent …