Invalid but infringed? An analysis of the bifurcated patent litigation system

Cremers, Katrin, Gaessler, Fabian, Harhoff, Dietmar, Helmers, Christian and Lefouili, Yassine (2016) Invalid but infringed? An analysis of the bifurcated patent litigation system. Journal of Economic Behavior and Organization, 131. pp. 218-242.

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Official URL: http://tse-fr.eu/pub/30846

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: Article
Language: English
Date: November 2016
Refereed: Yes
Uncontrolled Keywords: Litigation, patents, bifurcation
Subjects: B- ECONOMIE ET FINANCE
Divisions: TSE-R (Toulouse)
Site: UT1
Date Deposited: 21 Sep 2016 07:47
Last Modified: 07 Mar 2018 13:23
OAI ID: oai:tse-fr.eu:30846
URI: http://publications.ut-capitole.fr/id/eprint/22376

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