Zombie Patents and Zombie Companies with Patents
The word “Zombie” has its roots in the Haitian French language, referring to the reanimation of the human corpse. “Zombie” has become ubiquitous in American popular culture; zombies seem to be everywhere from films, novels, comic books, video games, and botnets to tax. Of course, science fiction reincarnates zombies as post-human, appearing in different forms of the undead through viruses, diseases, and experimental accidents, among others. Debates about zombies find no agreement, but we can all agree that we know a zombie when we see it, and we don’t like what we see. While a zombie is the undead and has no expiration, patents do. A patent comes into existence the moment the government, through the United States Patent and Trademark Office (USPTO), examines the invention application and issues a grant of patent. From that birth, a patent will have a lifetime of only twenty years from the date of filing the application. Patents expire and have no life after the twenty-year period. Some patents die when the patentees abandon them by not paying maintenance fees. Dead patents must remain dead and become part of the public domain. Unfortunately, this Essay observes that dead patents are not dead. Recent statutory amendments, and U.S. Court of Appeals for the Federal Circuit decisions, allow dead patents to become undead, haunting the living businesses, as seen in Parts I and II, respectively. Notably, the Federal Circuit’s trio of cases has judicially prolonged zombie patents by wrongly eliminating any pathway to challenge improper revivals of dead patents or to raise improper revival as a defense in patent infringement actions. In addition, there is a zombification process that some drug companies have employed on certain patents at the expense of the consuming public, as Part III describes. Along with zombie patents, some companies that were thought to be dead have now resurfaced with patent portfolios to frighten others, as Part IV illustrates. Zombie patents and zombie companies with patents raise serious questions about what patents are, what patents should be, and whether patents have strayed too far from the constitutional vision of patents, which is to promote the progress of science and the useful arts.