Lessons from the Fall of the Roman Empire: The Patent Law Edition

Authors

• Emma Masters

Abstract

This article examines the crises threatening the U.S. Patent System through the historical lens of the fall of the Roman Empire, arguing that a loss of predictability and the hollowing out of property rights threaten to dismantle American innovation. Drawing parallels between the Roman Empire’s economic decay and modern legal trends, this piece explores how costly litigation—often surpassing millions of dollars—and the rise of “efficient infringement” among other troubling phenomena, act as a “tax” on innovation that disproportionately stifles small and medium-sized enterprises (SMEs). The U.S Patent System’s original purpose of incentivizing innovation is being compromised by patent thickets, a failure in the notice function, and the proliferation of Third-Party Litigation Funding (TPLF), which introduce significant ethical dilemmas for patent attorneys and the broader patent system that must be addressed. The article also addresses escalating foreign influences and threats, including from China, whose strategic use of anti-suit injunctions and exploitation of the Patent Trial and Appeal Board (PTAB) undermine the value of U.S. patents at home and abroad. These external pressures are exacerbated by internal structural weaknesses, including a record-breaking backlog of unexamined applications and a concerning decline in the number of patent bar eligible attorneys. These challenges pose an uphill battle to an innovation economy that has relied on patents to incentivize research and development. Ultimately, this piece posits that the U.S. patent system must prioritize predictability and transparency—specifically through mandatory TPLF disclosures and legislative reforms like the PREVAIL Act—to restore the patent system’s “former honor and glory” and prevent investors from fleeing the U.S. “patent empire.”

Recommended Citation

Emma Masters, Lessons from the Fall of the Roman Empire: The Patent Law Edition, 1 Latin Am. & Carib. L. Rev. (2026), https://ecollections.law.fiu.edu/latinamericancaribbeanlawreview/vol1/iss1/15.