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.
Litigation; patents; bifurcation;
Katrin Cremers, Fabian Gaessler, Dietmar Harhoff, Christian Helmers et Yassine Lefouili, « Invalid but infringed? An analysis of the bifurcated patent litigation system », TSE Working Paper, n° 16-698, septembre 2016.
Katrin Cremers, Fabian Gaessler, Dietmar Harhoff, Christian Helmers et Yassine Lefouili, « Invalid but infringed? An analysis of the bifurcated patent litigation system », Journal of Economic Behavior and Organization, vol. 131, novembre 2016, p. 218–242.