Zombie Patents and Zombie Companies with Patents

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.