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  Invalid but Infringed? An Analysis of the Bifurcated Patent Litigation System

Cremers, K., Gaessler, F., Harhoff, D., Helmers, C., & Lefouili, Y. (2016). Invalid but Infringed? An Analysis of the Bifurcated Patent Litigation System. Journal of Economic Behavior & Organization, 131 (PA), 218-242. doi:10.1016/j.jebo.2016.08.005.

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Description:
Also published as Max Planck Institute for Innovation & Competition Research Paper No. 14-14
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Also published as ZEW - Centre for European Economic Research Discussion Paper No. 14-072
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 Creators:
Cremers, Katrin1, Author
Gaessler, Fabian2, Author           
Harhoff, Dietmar2, Author           
Helmers, Christian1, Author
Lefouili, Yassine1, Author
Affiliations:
1External Organizations, ou_persistent22              
2MPI for Innovation and Competition, Max Planck Society, ou_2035292              

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Free keywords: Litigation; Patents; Bifurcation
 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.

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Language(s): eng - English
 Dates: 2016
 Publication Status: Issued
 Pages: -
 Publishing info: -
 Table of Contents: -
 Rev. Type: -
 Identifiers: DOI: 10.1016/j.jebo.2016.08.005
 Degree: -

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Title: Journal of Economic Behavior & Organization
  Abbreviation : JEBO
  Abbreviation : JBO
  Abbreviation : J Econ Behav Organ
  Abbreviation : J Econom Behavior Organization
Source Genre: Journal
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Pages: - Volume / Issue: 131 (PA) Sequence Number: - Start / End Page: 218 - 242 Identifier: ISSN: 0167-2681
ZDB: 864321-0