Fletcher YoderSovereign immunity can be used by states as a shield from copyright suits in federal court. Abrogation of that immunity by Congress requires an explicit statement to do so and must meet the congruent and proportional test between the injury to be prevented or remedied and the means adopted to that end.
Use of plantiff’s method patent by United States does not give rise to Tucker Act claim for taking of private property for public use under Fifth Amendment, since U.S. Supreme Court has ruled that patentee cannot sue federal government for patent infringement as Fifth Amendment taking under Tucker Act, and court’s holding has not been overruled, since, in response to that ruling, U.S. Congress provided specific sovereign immunity waiver, under 28 U.S.C. § 1498, allowing patentee to recover for infringement by federal government, and since government’s “taking” of license to use patent, unlike regulatory takings and inverse condemnation of real property, therefore creates cause of action under Section 1498, rather than Tucker Act claim, even if it is assume that patent is type of property that comes within protection of Fifth Amendment takings clause.