Cremers, Katrin, Gaessler, Fabian, Harhoff, Dietmar, Helmers, Christian and Lefouili, Yassine (2016) Invalid but infringed? An analysis of the bifurcated patent litigation system. TSE Working Paper, n. 16-698

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Abstract

In bifurcated patent litigation systems, claims of infringement and validity of a patent are decided independently of each other in separate court proceedings at different courts. In non-bifurcated systems, infringement and validity are decided jointly in the same proceedings at a single court. We build a model that shows the key trade-off between bifurcated and non-bifurcated systems and how it affects the incentives of plaintiffs and defendants in patent infringement cases. Using detailed data on patent litigation cases in Germany (bifurcated) and the U.K. (non-bifurcated), we show that bifurcation creates situations in which a patent is held infringed that is subsequently invalidated. We also show that having to challenge a patent’s validity in separate court proceedings under bifurcation implies that alleged infringers are less likely to do so. We find this to apply in particular to more resource-constrained alleged infringers. Finally, we find parties to be more likely to settle in a bifurcated system.

Item Type: Monograph (Working Paper)
Language: English
Date: September 2016
Uncontrolled Keywords: Litigation, patents, bifurcation
Subjects: B- ECONOMIE ET FINANCE
Divisions: TSE-R (Toulouse)
Institution: Universite Toulouse 1 Capitole
Site: UT1
Date Deposited: 21 Sep 2016 07:43
Last Modified: 29 Jun 2021 07:53
OAI Identifier: oai:tse-fr.eu:30845
URI: https://publications.ut-capitole.fr/id/eprint/22375

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