Bad Actors and the Evolution of Patent Law

Historically high levels of abusive patent enforcement fuel an ongoing debate on the need for legislative and judicial reforms designed to deter bad faith conduct by patent holders. To date, this debate has focused intently on the direct monetary costs and benefits of reform, most notably the impact on litigation costs and patent valuations. This Essay argues that this focus has led patent reformers and their opponents to overlook a significant indirect benefit of taking action against bad actors: namely, that strengthening courts’ ability to punish and prevent bad behavior will tend to make patent law more coherent and predictable in the long run. As the Essay explains, patent law’s lack of effective deterrents to bad faith conduct likely played a role to the creation of some of the most perennially confounding aspects of patent law. In the words of a familiar adage, patent law has seen its fair share of “bad facts” spawning “bad law.” In light of this history, there is good reason to believe that one benefit of raising the bar for acceptable conduct in patent litigation is that patent law will thereafter develop more logically for the simple reason that courts will be forced to grapple with bad facts (and thus tempted to make bad law) less often as a result.