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VIRGINIA LAW REVIEW ONLINE
VOLUME 101 JANUARY2015 1-13
ESSAY
BAD ACTORS AND THE EVOLUTION OF PATENT LAW
Brian]. Love*
IN patent law, bad actors are the topic du jour. Nuisance value pa-
tent lawsuits, mass-mailed demand letters, and other practices of
dubious social value dominate patent policy discussions.' So much
so, in fact, that only four years after overhauling the patent system
in 20112 Congress is again considering a package of patent reforms
to target these activities and more.3
* Assistant Professor and Co-Director of the High Tech Law Institute, Santa Clara
University School of Law. Thanks to Bernard Chao, Eric Goldman, and Kyle Graham for
comments on previous drafts of this Essay.
1 See, e.g., Joe Mullin, Lawmakers Blast Patent Trolls, but Split on Parts of a Key Bill,
Ars Technica (Oct. 30, 2013, 9:00 PM), http://arstechnica.com/tech-policy/2013/10/
lawmakers-blast-patent-trolls-but-split-on-parts-of-a-key-bill/ (quoting members of
the U.S. House of Representatives Judiciary Committee).
2 President Obama signed the Leahy-Smith America Invents Act (AIA), Pub. L. No.
112-29, 125 Stat. 284 (2011), the largest package of patent reform legislation passed
since 1952, on September 16, 2011. Because most controversial aspects of the bill were
removed before its passage, the AIA was largely greeted with ambivalence by the pa-
tent community. See, e.g., Gary R. Maze & K. Kalan, The America Invents Act: Much Ado
About Very Little, Berenbaum Weinshienk PC (Oct. 3, 2011), http://www.bw-
legal.com/news/nbin/20111006_whitepaper.pdf. In recent months, however, new pro-
cedures created by the AIA for administratively challenging issued patents have ex-
ploded in popularity and promise to have a significant impact on patent litigation strat-
egy moving forward. See Brian J. Love & Shawn Ambwani, Inter Partes Review: An Early
Look at the Numbers, 81 U. Chi. L. Rev. Dialogue 93, 93-95 (2014).
3 In December 2013, the U.S. House of Representatives passed the Innovation Act,
H.R. 3309, 113th Cong. (2013), but the bill later died in the Senate in May 2014. See
Kate Tummarello, Patent Reform Bill Dealt Fatal Blow in Senate, The Hill (May 21,
2014, 5:16 PM), http://thehill.com/policy/technology/206793-leahy-takes-patent-
reform-off-committee-agenda. The Innovation Act was largely designed with nuisance
value patent litigation in mind and, if passed, would have, inter alia, raised pleading re-
quirements for patent infringement claims, established a presumption that attorneys'
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