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COLUMBIA LAW REVIEW ONLINE
VOL. 117 JANUARY 13, 2017 PAGES 1-21
THE CASE FOR ELIMINATING PATENT LAW'S
INEQUITABLE CONDUCT DEFENSE
Eric E. Johnson *
INTRODUCTION
Pressure is building again for Congress to reform patent law.1
Various proposals would reduce patent-litigation costs through fee shift-
ing,2 delaying discovery,3 or allowing manufacturers to defend suits on
behalf of their customers.4 Eluding consideration, however, is one simple
* Associate Professor of Law, University of North Dakota School of Law. I am
grateful to Ryan Vacca, Robert D. Swanson, and Kit Johnson for comments on earlier
drafts.
1. See Matthew Bultman, USPTO Chief Calls for Patent Reform, Higher-Quality
Patents, Law360 (Jan. 8, 2016, 8:06 PM), http://www.1aw360.com/articles/744549/uspto-chief-
calls-for-patent-reform-higher-quality-patents [http://perma.cc/6M88-NCHD] (describing
USPTO Director Michelle Lee's calls for legislation to curtail [] abusive patent litigation
tactics while also preserving a patent owner's ability to enforce their rights); Paul Morinville,
Senator Grassley Talks About Patent Reform at Iowa Town Halls, IPWatchdog (Jan. 10,
2016), http://www.ipwatchdog.com/2016/01/10/senator-grassley-patent-reform-town-halls/
id=64816/ (on file the Columbia Law Review) (describing Senator Chuck Grassley talking to
voters about current patent reform legislation); Lisa Patel & Sid Venkatesan, Patent Reform
Tries Again, TechCrunch (Sept. 13, 2015), http://techcrunch.com/2015/09/13/patent-
reform-tries-again/ [http://perma.cc/F5QJ-5U94] (describing a continued beehive of
patent reform activity in the Supreme Court and Congress and the continued public
drumbeat (a drumbeat taken up by President Obama, among others) against 'Patent
Assertion Entities' (PAE), aka 'patent trolls'); Barack Obama, President Barack Obama's
State of the Union Address (Jan. 28, 2014), http://www.whitehouse.gov/the-press-
office/2014/01/28/president-barack-obamas-state-union-address [http://perma.cc/C3UY-
UMFG] ( [L] et's pass a patent reform bill that allows our businesses to stay focused on
innovation, not costly, needless litigation.).
2. See Innovation Act of 2015, H.R. 9, 114th Cong. § 3(b) (1) (2015) (directing
courts to award costs and attorneys' fees to a prevailing party, with exceptions).
3. See, e.g., Daniel Nazer, Six Good Things About the Innovation Act: Part Three,
Ending Discovery Abuse, Electronic Frontier Found.: Deeplinks (Nov. 4, 2013), http://
www.eff.org/deeplinks/2013/1 1/six-good-things-about-innovation-act-part-three-ending-
discovery-abuse [http://perma.cc/L2GV-WJSWI (discussing the delayed discovery provi-
sion of the proposed Innovation Act).
4. See, e.g., Julie Samuels, Six Good Things About the Innovation Act: Part Five,
Customer Suit Exception, Electronic Frontier Found.: Deeplinks Blog (Nov. 6, 2013),
http://www.eff.org/deeplinks/2013/10/six-good-things-about-innovation-act-part-five-customer
-suit-exception [http://perma.cc/62D3-YGNA] (discussing the proposed Innovation Act's
provision for allowing manufacturers to step into litigation targeting their customers).
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