117 Colum. L. Rev. Online 1 (2017)

handle is hein.journals/sidbarc117 and id is 1 raw text is: 










             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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