Professor Shubha Ghosh, director of the Syracuse Intellectual Property Law Institute, discussed the Railware Inc. v. NJ Transit Corp. case that is being heard by the Southern District of New York with Bloomberg Law.
At issue in the case is whether NJ Transit is using patented rail worker-safety technology without permission in the cross-jurisdictional tunnels that connect New Jersey and New York.
This is a rare instance of the defendant raising a sovereign immunity defense in a patent infringement case.
According to the article, if NJ Transit proves it qualifies for sovereign immunity, the question will become whether it’s “waived that immunity or consented to suit.”
Waivers are particular to any given entity, but if the New York district court finds “some specific language” where NJ Transit waived its 11th Amendment immunity, it could help Railware in cases against other transportation authorities, says Ghosh.
The district court “might do something as bold as to say that the 11th Amendment doesn’t apply to this case for some reason,” Ghosh added. “But it’s unlikely to do that. That’s going to create some conflict with the Supreme Court precedent.”