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2018 Pepp. L. Rev. Ann. 1 (2018)

handle is hein.journals/pnelwrwan2018 and id is 1 raw text is: Ericsson, Inc. v. Regents ofthe University ofMinnesota and a New Frontier for the Waiver by Litigation Conduct Doctrine Jason Kornmehl* Abstract Eleventh Amendment sovereign immunity is one of the most confusing ar- eas of constitutional law. The waiver by litigation conduct doctrine repre- sents a particularly complex aspect of Eleventh Amendment immunity. Courts, for example, have notprecisely defined the extent to which waiver in apriorproceeding might extend to afuture one. The Patent Trial andAppeals Board recently considered this issue in a novel context. In Ericsson, Inc. v. Regents of the University of Minnesota, the Patent Trial andAppeals Board applied the waiver by litigation conduct doctrine in an inter partes review proceeding. Combining the Eleventh Amendment, non-Article III courts, and patent law, Ericsson qualifies as an important ruling. This article explores the Ericsson decision and its implications. 1 * Jason Kommehl is an associate at Sullivan & Cromwell LLP. The views expressed are his own and not that of the Firm or its clients.

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