Love, Brian, Lefouili, Yassine and Helmers, Christian (2023) Do Standard-Essential Patent Owners Behave Opportunistically? Evidence from U.S. District Court Dockets. American Law and Economics Review, vol. 25 (n° 1). pp. 300-337.

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Identification Number : 10.1093/aler/ahad010


To what extent and with what effect do owners of standard-essential patents (SEPs) “hold-up” companies that produce standard-compliant products? To explore this question, we construct measures of opportunistic patent licensing behaviors using detailed information collected from the dockets of U.S. patent cases filed (2010-2019) to enforce SEPs and a matched sample of non-SEPs. Overall, we find evidence of opportunistic behavior by the patent enforcer in approximately 77% of SEP and 65% of non-SEP assertions in court. The figures mask important heterogeneity. There is significantly more opportunistic conduct aimed at increasing a potential licensee’s loss if the patent enforcer prevails in court: 35% of SEP assertions vs. 10% of non-SEP assertions. In contrast, conduct that increases a potential licensee’s litigation costs is less common and the difference between SEP assertions (8%) and non-SEP assertions (6%) is small. We also show that opportunistic behavior is associated with case outcomes, with the effect on settlement depending on the type of opportunistic behavior. Behavior that increases a potential licensee’s litigation costs is associated with an increase in the probability
of settlement, while behavior that increases a potential licensee’s loss if the patent enforcer prevails in court is negatively associated with settlement.

Item Type: Article
Language: English
Date: 2023
Refereed: Yes
Uncontrolled Keywords: Litigation, standards, patents, holdup, U.S
JEL Classification: K41 - Litigation Process
O30 - General
Divisions: TSE-R (Toulouse)
Site: UT1
Date Deposited: 04 Oct 2023 13:55
Last Modified: 16 Apr 2024 08:00
OAI Identifier:
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