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The Software Information Industry Association is asking the Supreme Court to examine whether states are immune from patent infringement lawsuits. Lower courts have ruled that states are immune from patent infringement lawsuits. But at the same time, states apparently can obtain patents themselves and sue the very same private companies for patent infringement. The SIIA is asking the Supreme Court to level the playing field. It argues that if states are going around demanding licensing revenues for their own patents, it's not fair for them to turn around and claim sovereign immunity when they infringe other peoples' patents. That seems like a sensible argument to me, although I'm no lawyer.

But the story brings to mind a more fundamental question: why are states allowed to obtain patents in the first place? The usual policy argument for patents is that they promote the common good by giving people incentives to invest in new technologies. But this argument doesn't really make sense when we're talking about a state government. States are already supposed to be spending taxpayer dollars to promote the common good, so they don't need extra incentives to do so. And they already have access to tens of billions of dollars through taxation, so they don't need a way to raise capital. If spending more taxpayer dollars on research promotes the common good, then states have the ability to do that regardless of whether they can get a patent for it. And if a new technology is developed with taxpayer dollars, all taxpayers should be allowed to use it without paying still more money in royalties.

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