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Since Congress’s enactment of the Leahy-Smith America Invents Act, the power and influence of the Patent Trial and Appeal Board as an adjunct to (or substitute for) patent litigation has steadily grown. And just as the PTAB and district courts both face difficult questions of substantive patent law, many of the difficult jurisdictional and procedural issues that have presented in district court litigation have found counterparts in the PTAB, too. One category of such challenges regards the power of the PTAB to hear claims involving other governmental entities. Are the states immune from the power of the PTAB?

I conclude …