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Finding "Lost" Profits: An Equilibrium Analysis of Patent Infringement Damages

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Author Info
James J. Anton
Dennis A. Yao

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Abstract

We examine the impact of patent infringement damages in an equilibrium oligopoly model of process innovation where the choice to infringe is endogenous and affects market choices. Under the lost profits measure of damages normally employed by U.S. courts, we find that infringement always occurs in equilibrium with the infringing firm making market choices that manipulate the resulting market profit of the patent holder. In equilibrium, infringement takes one of two forms: a "passive" form in which lost profits of the patent holder are zero and an "aggressive" form where they are strictly positive. Even though the patentee's profits are protected with the lost profits damage measure, innovation incentives are reduced relative to a regime where infringement is deterred. Copyright 2007, Oxford University Press.

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File URL: http://hdl.handle.net/10.1093/jleo/ewm008
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Article provided by Oxford University Press in its journal The Journal of Law, Economics, and Organization.

Volume (Year): 23 (2007)
Issue (Month): 1 (April)
Pages: 186-207
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Handle: RePEc:oup:jleorg:v:23:y:2007:i:1:p:186-207

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  1. Yann Ménière & Sarah Parlane, 2008. "Innovation in the Shadow of Patent Litigation," Review of Industrial Organization, Springer, vol. 32(2), pages 95-111, March. [Downloadable!] (restricted)
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This page was last updated on 2009-11-19.


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