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The Selection Effects (and Lack Thereof) in Patent Litigation: Evidence from Trials

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Author Info
Alan C. Marco (Vassar College)

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Abstract

Using a selection corrected probit, I estimate the probability that patents will be found valid and infringed at trial. I combine for the first time detailed adjudication data with detailed patent data. I find that the selection effects for validity adjudications and infringement adjudications differ systematically. Additionally, infringement estimates do not appear to suffer from a substantial selection bias. The results highlight the importance of correctly specifying the selection mechanism in policy analysis. In contrast with previous studies, I find that the win rate for patents that go to trial is biased towards 50%. The bias is much more substantial for validity decisions, where I find unconditional win rates of 75% for adjudicated patents and 85% for matched patents. Win rates conditional on adjudication are below 60%.

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Publisher Info
Article provided by Berkeley Electronic Press in its journal The B.E. Journal of Economic Analysis & Policy.

Volume (Year): topics.4 (2004)
Issue (Month): 1 ()
Pages:
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Handle: RePEc:bpj:bejeap:v:topics.4:y:2004:i:1:n:21

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Related research
Keywords: Patent Litigation; Selection; Patent Value;

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Find related papers by JEL classification:
K41 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior - - - Litigation Process
O34 - Economic Development, Technological Change, and Growth - - Technological Change - - - Intellectual Property Rights

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  1. Joshua Lerner, 1994. "The Importance of Patent Scope: An Empirical Analysis," RAND Journal of Economics, The RAND Corporation, vol. 25(2), pages 319-333, Summer. [Downloadable!] (restricted)
  2. Theodore Eisenberg & Henry S. Farber, 1996. "The Litigious Plaintiff Hypothesis: Case Selection and Resolution," NBER Working Papers 5649, National Bureau of Economic Research, Inc. [Downloadable!] (restricted)
  3. Lanjouw, Jean Olson, 1998. "Patent Protection in the Shadow of Infringement: Simulation Estimations of Patent Value," Review of Economic Studies, Blackwell Publishing, vol. 65(4), pages 671-710, October. [Downloadable!] (restricted)
  4. Michael J. Meurer, 1989. "The Settlement of Patent Litigation," RAND Journal of Economics, The RAND Corporation, vol. 20(1), pages 77-91, Spring. [Downloadable!] (restricted)
  5. Hall, Bronwyn H & Jaffe, Adam B & Trajtenberg, Manuel, 2001. "The NBER Patent Citations Data File: Lessons, Insights and Methodological Tools," CEPR Discussion Papers 3094, C.E.P.R. Discussion Papers. [Downloadable!] (restricted)
    Other versions:
  6. James J. Heckman, 1976. "The Common Structure of Statistical Models of Truncation, Sample Selection and Limited Dependent Variables and a Simple Estimator for Such Models," NBER Chapters, in: Annals of Economic and Social Measurement, Volume 5, number 4, pages 120-137 National Bureau of Economic Research, Inc. [Downloadable!]
  7. John Allison & Mark Lemley & Kimberly Moore & Derek Trunkey, 2003. "Valuable Patents," Berkeley Olin Program in Law & Economics, Working Paper Series 1090, Berkeley Olin Program in Law & Economics. [Downloadable!]
  8. Jaffe, Adam B & Trajtenberg, Manuel & Henderson, Rebecca, 1993. "Geographic Localization of Knowledge Spillovers as Evidenced by Patent Citations," The Quarterly Journal of Economics, MIT Press, vol. 108(3), pages 577-98, August. [Downloadable!] (restricted)
    Other versions:
  9. Wesley M. Cohen & Richard R. Nelson & John P. Walsh, 2000. "Protecting Their Intellectual Assets: Appropriability Conditions and Why U.S. Manufacturing Firms Patent (or Not)," NBER Working Papers 7552, National Bureau of Economic Research, Inc. [Downloadable!] (restricted)
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  10. Waldfogel, Joel, 1995. "The Selection Hypothesis and the Relationship between Trial and Plaintiff Victory," Journal of Political Economy, University of Chicago Press, vol. 103(2), pages 229-60, April. [Downloadable!] (restricted)
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  11. Puhani, Patrick A, 2000. " The Heckman Correction for Sample Selection and Its Critique," Journal of Economic Surveys, Blackwell Publishing, vol. 14(1), pages 53-68, February. [Downloadable!] (restricted)
  12. Cooter, Robert D & Rubinfeld, Daniel L, 1989. "Economic Analysis of Legal Disputes and Their Resolution," Journal of Economic Literature, American Economic Association, vol. 27(3), pages 1067-97, September. [Downloadable!] (restricted)
  13. Choi, Jay Pil, 1998. "Patent Litigation as an Information-Transmission Mechanism," American Economic Review, American Economic Association, vol. 88(5), pages 1249-63, December. [Downloadable!] (restricted)
  14. Kortum, Samuel & Lerner, Josh, 1999. "What is behind the recent surge in patenting?1," Research Policy, Elsevier, vol. 28(1), pages 1-22, January. [Downloadable!] (restricted)
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