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Paula Schliessler - One of the best experts on this subject based on the ideXlab platform.
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Patent Litigation in Europe
European Journal of Law and Economics, 2017Co-Authors: Katrin Cremers, Max Ernicke, Fabian Gaessler, Dietmar Harhoff, Christian Helmers, Luke Mcdonagh, Paula Schliessler, Nicolas ZeebroeckAbstract:We compare Patent Litigation cases across four European jurisdictions—Germany, the UK (England and Wales), France, The Netherlands—using case-level data gathered from cases filed in the four jurisdictions during the period 2000–2008. Overall, we find substantial differences across jurisdictions in terms of caseloads—notably, courts in Germany hear by far the largest number of cases, not only in absolute terms, but also when taking macro-economic indicators into account—and we further find important cross-country variances in terms of case outcomes. Moreover, we show empirically that a considerable number of Patents are litigated across multiple European jurisdictions; and further, that in the majority of these cases divergent case outcomes are reached across the different jurisdictions, suggesting that the long-suspected problem of inconsistency of decision-making in European Patent Litigation is in fact real. Finally, we note that the coming into force of the Unified Patent Court in Europe may, in the long term, help to alleviate this inconsistency problem.
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Patent Litigation in Europe
ULB Institutional Repository, 2017Co-Authors: Katrin Cremers, Max Ernicke, Fabian Gaessler, Dietmar Harhoff, Christian Helmers, Paula Schliessler, Luke Mc Donagh, Nicolas Van ZeebroeckAbstract:We compare Patent Litigation cases across four European jurisdictions – Germany, France, the Netherlands, and the UK – covering cases filed during the period 2000-2008. For our analysis, we assemble a new dataset that contains detailed information at the case, litigant, and Patent level for Patent cases filed at the major courts in the four jurisdictions. We find substantial differences across jurisdictions in terms of case loads. Courts in Germany hear by far the largest number of cases in absolute terms, but also when taking country size into account. We also find important between-country differences in terms of outcomes, the share of cases that is appealed, as well as the characteristics of litigants and litigated Patents. A considerable number of Patents are litigated in multiple jurisdictions, but the majority of Patents are subject to Litigation only in one of the four jurisdictions.
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Patent Litigation settlement in Germany: why parties settle during trial
European Journal of Law and Economics, 2015Co-Authors: Katrin Cremers, Paula SchliesslerAbstract:This paper looks at the decision to settle Patent Litigation in Germany by focusing on detailed data on within-trial actions and motivations by plaintiff, defendant and the courts. Using a new dataset covering about 80 % of all Patent Litigation cases in Germany between 2000 and 2008 we estimate the likelihood of within-trial settlement. We find that the within-trial settlement decision is to some degree driven by the proceedings that change the pre-trial setting of the negotiations in terms of information and stakes and make previously refused settlement a new option. Additionally, firm-specific stakes as measured by the relation of the involved parties to the disputed Patent as well as firm-specific strategies are found to affect the general willingness to settle after the filing of a court case. The results suggest that pre-trial failure of settlement negotiations can to some extent be offset by within-trial settlement through efforts made by the court, but that the disposition to settle is to a larger degree determined by firm-specific stakes and strategies in the case.
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Patent Litigation and firm performance the role of the enforcement system
Industrial and Corporate Change, 2015Co-Authors: Paula SchliesslerAbstract:This paper analyzes the impact of the German Patent Litigation system on the firms involved in Patent Litigation suits. The German system of separation of infringement and invalidity decisions provides Patent holders with a window of opportunity to enforce Patents that may later be invalidated. This shifts a major share of the risk to the defendant, allocating bargaining power to the plaintiff. This study empirically provides support for this incongruity by analyzing how Patent Litigation outcome in Germany affects the financial performance of the disputing firms. I show that plaintiffs on average profit from Litigation while defendants agreeing upon a settlement deal lose as much as defendants losing in trial. I further show that small and unexperienced firms, particularly defendants, are at a disadvantage when dealing with Litigation. The results stress that, as long as Patent validity cannot entirely be established prior to the infringement proceedings, defendants, and particularly small defendants, will be disadvantaged by a separation of infringement and nullity proceedings.
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The Effect of Patent Litigation on Firm Performance – Evidence for Germany
SSRN Electronic Journal, 2013Co-Authors: Paula SchliesslerAbstract:I analyse how Patent Litigation outcome in Germany affects the performance of the disputing firms by interpreting changes in a firm's credit rating as a proxy for changes in firm performance. The results match theoretical considerations on the functioning of the bifurcated German Patent Litigation system: The separation of Litigation and invalidity decisions, resulting in invalidity decisions taking much longer than decisions on infringement, provides Patent holders with a window of opportunity to enforce Patents that may later be invalidated. This shifts a major share of the immediate risk to the defendant and allocates bargaining power to the plaintiff. The estimation results provide support for this incongruity. Plaintiffs on average profit from Litigation while defendants agreeing upon a settlement deal lose as much as defendants losing in trial. I further show that small, inexperienced defendant firms are at a disadvantage when dealing with Litigation.
Yimin Chen - One of the best experts on this subject based on the ideXlab platform.
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managerial cognitive capability approach to reactive Patent Litigation strategy
Proceedings of the 5th Multidisciplinary International Social Networks Conference on, 2018Co-Authors: Yimin ChenAbstract:The microfoundations of dynamic capabilities facilitating strategic change is an emerging theoretical and empirical issues in the field of strategic management. To date, the cognitive underpinnings of dynamic managerial capabilities remain largely unexplored. Patent Litigation is a common strategic behavior that is used in a variety of business domains. However, previous studies investigating whether Patent Litigation is effective at creating barriers to competition mainly take the plaintiff's perspective. Using the information-based, rivalry-based, resource-based, and mental model theories, the authors take the defendant's managerial cognitive capability perspective and build a rational, normative model of the combined influences of exogenous and endogenous forces by incorporating the strategic intent perspective to explore the defendant's decision of whether to conduct or abstain from launching reactive Patent Litigation. Results of an experimental design using a sample of top executives shows that exogenous factors (asymmetric information, strategic group membership, and market positions), endogenous factors (organizational slack and analogical reasoning approach), and CEOs' personality characteristics (strategic intent perspective) affect CEO behavior intentions to launch a reactive Patent Litigation strategy. These findings broaden information-based, rivalry-based, resource-based, and mental model theories' explanations of reactive Patent Litigation decisions, and enable the formulation of codes of conduct for managerial cognitive capability in regard to legal astuteness in Patent Litigation.
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MISNC - Managerial Cognitive Capability Approach to Reactive Patent Litigation Strategy
Proceedings of the 5th Multidisciplinary International Social Networks Conference on - MISNC '18, 2018Co-Authors: Yimin ChenAbstract:The microfoundations of dynamic capabilities facilitating strategic change is an emerging theoretical and empirical issues in the field of strategic management. To date, the cognitive underpinnings of dynamic managerial capabilities remain largely unexplored. Patent Litigation is a common strategic behavior that is used in a variety of business domains. However, previous studies investigating whether Patent Litigation is effective at creating barriers to competition mainly take the plaintiff's perspective. Using the information-based, rivalry-based, resource-based, and mental model theories, the authors take the defendant's managerial cognitive capability perspective and build a rational, normative model of the combined influences of exogenous and endogenous forces by incorporating the strategic intent perspective to explore the defendant's decision of whether to conduct or abstain from launching reactive Patent Litigation. Results of an experimental design using a sample of top executives shows that exogenous factors (asymmetric information, strategic group membership, and market positions), endogenous factors (organizational slack and analogical reasoning approach), and CEOs' personality characteristics (strategic intent perspective) affect CEO behavior intentions to launch a reactive Patent Litigation strategy. These findings broaden information-based, rivalry-based, resource-based, and mental model theories' explanations of reactive Patent Litigation decisions, and enable the formulation of codes of conduct for managerial cognitive capability in regard to legal astuteness in Patent Litigation.
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a preemptive power to offensive Patent Litigation strategy value creation transaction costs and organizational slack
Journal of Business Research, 2016Co-Authors: Yimin Chen, Hsin-hsien Liu, Yusiang Liu, Hueiting HuangAbstract:Offensive Patent Litigation is an increasingly important part of the firm's corporate strategy to protect the values of its intellectual property rights. Building on the value creation and transaction costs perspectives, this study explores how the preemptive power is most important to a firm's offensive Patent Litigation strategy through two key mechanisms. By applying an experimental design method to develop scenarios for top executives of publicly-traded companies and small- and medium-sized enterprises, the results show that both the Patents' value creation based on their transaction costs and market positions influence the propensity of preemptive power separately through perceived benefits and organizational slack, and accordingly affect the offensive Patent Litigation strategy. These findings not only broaden the resource-based, transaction cost and value creation explanations of offensive Patent Litigation decisions, but also facilitate the formulation of the codes of conduct for the managerial capability in the contexts of offensive Patent Litigation.
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Information- and rivalry-based perspectives on reactive Patent Litigation strategy
Journal of Business Research, 2015Co-Authors: Yimin Chen, Hsin-hsien Liu, Ying-maw TengAbstract:Patent Litigation is a common form of legal, economic and strategic behaviors that arise in a variety of business domains. Using information-based and rivalry-based theories, this study explores how asymmetric information, competitive rivalry in a strategic group and market positions influence companies' reactions to Patent Litigation. By applying an experimental design method to develop scenarios for top executives of small and medium-sized enterprises, the results show that a theoretical framework of asymmetric information, competitive rivalry in a strategic group and market positions affect a firm's reactive Patent Litigation strategy. These findings not only broaden information- and rivalry-based theories' explanations of reactive Patent Litigation decisions, but also enable us to formulate the codes of conduct for the managerial capability in regard to legal astuteness in Patent Litigation.
Katrin Cremers - One of the best experts on this subject based on the ideXlab platform.
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Patent Litigation in Europe
European Journal of Law and Economics, 2017Co-Authors: Katrin Cremers, Max Ernicke, Fabian Gaessler, Dietmar Harhoff, Christian Helmers, Luke Mcdonagh, Paula Schliessler, Nicolas ZeebroeckAbstract:We compare Patent Litigation cases across four European jurisdictions—Germany, the UK (England and Wales), France, The Netherlands—using case-level data gathered from cases filed in the four jurisdictions during the period 2000–2008. Overall, we find substantial differences across jurisdictions in terms of caseloads—notably, courts in Germany hear by far the largest number of cases, not only in absolute terms, but also when taking macro-economic indicators into account—and we further find important cross-country variances in terms of case outcomes. Moreover, we show empirically that a considerable number of Patents are litigated across multiple European jurisdictions; and further, that in the majority of these cases divergent case outcomes are reached across the different jurisdictions, suggesting that the long-suspected problem of inconsistency of decision-making in European Patent Litigation is in fact real. Finally, we note that the coming into force of the Unified Patent Court in Europe may, in the long term, help to alleviate this inconsistency problem.
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Patent Litigation in Europe
ULB Institutional Repository, 2017Co-Authors: Katrin Cremers, Max Ernicke, Fabian Gaessler, Dietmar Harhoff, Christian Helmers, Paula Schliessler, Luke Mc Donagh, Nicolas Van ZeebroeckAbstract:We compare Patent Litigation cases across four European jurisdictions – Germany, France, the Netherlands, and the UK – covering cases filed during the period 2000-2008. For our analysis, we assemble a new dataset that contains detailed information at the case, litigant, and Patent level for Patent cases filed at the major courts in the four jurisdictions. We find substantial differences across jurisdictions in terms of case loads. Courts in Germany hear by far the largest number of cases in absolute terms, but also when taking country size into account. We also find important between-country differences in terms of outcomes, the share of cases that is appealed, as well as the characteristics of litigants and litigated Patents. A considerable number of Patents are litigated in multiple jurisdictions, but the majority of Patents are subject to Litigation only in one of the four jurisdictions.
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invalid but infringed an analysis of the bifurcated Patent Litigation system
2016Co-Authors: Katrin Cremers, Fabian Gaessler, Dietmar Harhoff, Christian Helmers, Yassine LefouiliAbstract: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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Invalid But Infringed? An Analysis of Germany's Bifurcated Patent Litigation System
Journal of Economic Behavior & Organization, 2016Co-Authors: Katrin Cremers, Fabian Gaessler, Dietmar Harhoff, Christian HelmersAbstract: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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Patent Litigation settlement in Germany: why parties settle during trial
European Journal of Law and Economics, 2015Co-Authors: Katrin Cremers, Paula SchliesslerAbstract:This paper looks at the decision to settle Patent Litigation in Germany by focusing on detailed data on within-trial actions and motivations by plaintiff, defendant and the courts. Using a new dataset covering about 80 % of all Patent Litigation cases in Germany between 2000 and 2008 we estimate the likelihood of within-trial settlement. We find that the within-trial settlement decision is to some degree driven by the proceedings that change the pre-trial setting of the negotiations in terms of information and stakes and make previously refused settlement a new option. Additionally, firm-specific stakes as measured by the relation of the involved parties to the disputed Patent as well as firm-specific strategies are found to affect the general willingness to settle after the filing of a court case. The results suggest that pre-trial failure of settlement negotiations can to some extent be offset by within-trial settlement through efforts made by the court, but that the disposition to settle is to a larger degree determined by firm-specific stakes and strategies in the case.
Jonathan W Williams - One of the best experts on this subject based on the ideXlab platform.
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the distribution of surplus in the us pharmaceutical industry evidence from paragraph iv Patent Litigation decisions
The Journal of Law and Economics, 2020Co-Authors: Ruben Jacoborubio, John L Turner, Jonathan W WilliamsAbstract:AbstractIn paragraph iv pharmaceutical cases, a Patent-Litigation decision often determines whether a brand-firm monopoly continues or generic entry occurs. Using unique Patent-Litigation data and ...
David L Schwartz - One of the best experts on this subject based on the ideXlab platform.
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an empirical study of design Patent Litigation
2020Co-Authors: David L Schwartz, Xaviere GiroudAbstract:High-profile design Patent Litigation between Apple and Samsung has made headlines in the last few years. Not surprisingly, thereafter, design Patents and related Litigation have risen exponentially, and have become more important to the economy. Design Patents provide legal protection for aesthetic and ornamental aspects of a manufactured product. While there is a rich and longstanding empirical literature and a crucial understanding about many facets of utility Patent Litigation, almost nothing is known about the design Patent Litigation world. This article fills that void. By building a novel and comprehensive database of all lawsuits alleging design Patent infringement from 2000 to 2016, this article reports the results of a broad empirical exploration of design Patent Litigation, while giving an overview of the design Patent Litigation process. The study reveals that while utility and design Patent Litigation look similar at first glance, they are actually very different in several important respects. First, we find that unlike utility Litigation, which almost always often involves a large company, almost half of design Patent Litigation involves small or medium-sized companies as both plaintiffs and defendants. Second, the amount of design Patent Litigation has continuously increased over the last decade, whereas utility Patent infringement lawsuits sharply increased and then dipped over the same period. Third, design Patent plaintiffs tend to file cases in different districts than utility Patent plaintiffs. Namely, we find that design Patent asserters did not participate in the flood of Litigation in the Eastern District of Texas. Finally, design Patent plaintiffs are almost all practicing entities who manufacture products rather than non-practicing entities (so-called “trolls”). These empirical findings have important implications for the law of design Patents. While the courts treat utility and design Patent Litigation as similar for many purposes, including understanding the doctrine and managing the docket, the actual Litigation on the ground is starkly different.
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Understanding the Realities of Modern Patent Litigation
Texas Law Review, 2014Co-Authors: John R Allison, Mark A Lemley, David L SchwartzAbstract:Sixteen years ago, two of us published the first detailed empirical look at Patent Litigation. In this Article, we update and expand the earlier study with a new hand-coded data set. We evaluate all substantive decisions rendered by any court in every Patent case filed in 2008 and 2009 — decisions made between 2009 and 2013. We consider not just Patent validity but also infringement and unenforceability. Moreover, we relate the outcomes of those cases to a host of variables, including variables related to the parties, the Patents, and the courts in which those cases were litigated. The result is a comprehensive picture of the outcomes of modern Patent Litigation, one that confirms conventional wisdom in some respects but upends it in others. In particular, we find a surprising amount of continuity in the basic outcomes of Patent lawsuits over the past twenty years, despite rather dramatic changes in who brought Patent suits during that time.
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understanding the realities of modern Patent Litigation
Texas Law Review, 2014Co-Authors: John R Allison, Mark A Lemley, David L SchwartzAbstract:Sixteen years ago, two of us published the first detailed empirical look at Patent Litigation. In this Article, we update and expand the earlier study with a new hand-coded data set. We evaluate all substantive decisions rendered by any court in every Patent case filed in 2008 and 2009-decisions made between 2009 and 2013. We consider not just Patent validity but also infringement and unenforceability. Moreover, we relate the outcomes of those cases to a host of variables, including variables related to the parties, the Patents, and the courts in which those cases were litigated. The result is a comprehensive picture of the outcomes of modern Patent Litigation, one that confirms conventional wisdom in some respects but upends it in others. In particular, we find a surprising amount of continuity in the basic outcomes of Patent lawsuits over the past twenty years, despite rather dramatic changes in who brought Patent suits during that time.Sixteen years ago, two of us published the first detailed empirical look at Patent Litigation.2 That study provided a wealth of valuable information about Patent-validity Litigation, including the discovery that nearly half of all Patents litigated to judgment were held invalid.3 But it was also limited in various respects. The study was based only on Patent-validity decisions that finally resolved the case on the merits and only on reported decisions available in a particular legal reporter.4 The latter limitation meant that almost half of the decisions were appellate.5 Importantly, the cases serving as the study's data sources are now on average more than twenty years old.6In this Article we update and expand the earlier study with a new hand-coded data set. We evaluate all substantive decisions rendered by any court in every Patent case filed in 2008 and 2009-decisions made between 2009 and 2013. We consider not just Patent validity but also infringement and unenforceability. Moreover, we relate the outcomes of those cases to a host of variables, including variables related to the parties, the Patents, and the court in which the case was litigated. The result is a comprehensive picture of the outcomes of modern Patent Litigation, one that confirms conventional wisdom in some respects but upends it in others.In Part I, we discuss previous efforts to evaluate Patent Litigation empirically. In Part II, we discuss our methodology and the choices we made in study design. We present our results in Part III.I. The Prior Art: Efforts to Understand Patent Litigation So FarA number of scholars have empirically studied specific Patent law doctrines. Claim construction is the most common, with most articles focusing on appellate cases.7 Obviousness has also been a point of scholarly interest,8 as have inequitable conduct9 and the doctrine of equivalents.10 Although the empirical research into Patent Litigation just mentioned has largely focused on Federal Circuit decisions,11 with research employing data from district court Litigation typically having been limited to opinions available on Westlaw or Lexis,12 there have been a few notable exceptions.13 Unreported decisions, especially denials of summary judgment and the results of jury trials, are lacking from these data sets.14Recently, the underlying documents, including motions and opinions, from district court Litigation became more readily available. Electronic filing requirements meant that the online filing tool, Public Access to Court Electronic Records (PACER), has a nearly complete collection of Litigation documents from Patent cases.15 Some scholars have taken advantage of PACER data to analyze district court decisions.16 But the raw data provided by the Administrative Office of the United States Courts is notoriously error-prone,17 and it does a poor job of classifying outcomes.18II. Our MethodologyIn this Part, we explain in detail the techniques we used to locate and collect the data. …
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The Rise of Contingent Fee Representation in Patent Litigation
SSRN Electronic Journal, 2012Co-Authors: David L SchwartzAbstract:It is well known that contingent representation is on the rise in Patent Litigation. But why? And what are the lawyers in the field like? Although scholars have studied contingent Litigation in other contexts — such as medical malpractice, personal injury, and products liability Litigation — Patent Litigation has received almost no attention. This gap in the literature is unsettling because Patent Litigation is different from these other fields of contingent Litigation in important and interesting ways. These differences include: Patent Litigation is much more uncertain; the costs of litigating claims are usually significantly higher; and Patents, including their underlying infringement claims, are freely assignable. Absent in most other contingent Litigation contexts, these characteristics of Patent Litigation shed light on the broader topics of Litigation and contingency relationships in general.Drawing upon several sources of data, including in-depth interviews with over forty lawyers involved in contingent representation in Patent Litigation and examination of over forty contingent fee agreements, this Article provides the first comprehensive analysis of the rapid evolution of contingent representation in Patent law. The development of contingent representation includes top-tier Litigation firms recently transitioning to taking on high value contingent cases, small entrants representing plaintiffs in lower value cases, and numerous general practice firms experimenting with contingent Patent Litigation. These diverse players each select and litigate cases using varied methods, resulting in different levels of risk and reward. The Article uses the study of these players to discuss how and why attorney-client contingent relationships established in the nascent marketplace of Patent contingent Litigation differ from other types of contingent Litigation, and what Patent law can teach about contingent representation in general. It also lays the foundation for future quantitative research comparing the results of contingent and hourly billing representation.