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Delayed entry settlements at the patent office

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  • Hovenkamp, Erik
  • Lemus, Jorge

Abstract

The Patent Trial and Appeal Board (PTAB) is a recently-formed division of the Patent Office in which patents can be challenged as invalid, and which differs from federal courts in a number of respects. We investigate whether monopolist-patentees and their prospective rivals are using the PTAB—which has not previously received antitrust attention—as a platform for striking settlements that delay the rivals’ entry. Such settlements are common in pharmaceutical markets, and are typically antitrust violations in cases where the patentee pays the challenger (“pay for delay”). However, problematic statutory inducements lead to excessively-delayed competition even in lieu of such payments. Our empirical findings suggest that delayed entry settlements are now commonly executed in the PTAB, and that they comprise a large majority of all PTAB settlements reached between pharmaceutical rivals. Further, nearly half of the delayed entry settlements were reached after the relevant patent claims were deemed “reasonably likely” to be invalid.

Suggested Citation

  • Hovenkamp, Erik & Lemus, Jorge, 2018. "Delayed entry settlements at the patent office," International Review of Law and Economics, Elsevier, vol. 54(C), pages 30-38.
    • Handle: RePEc:eee:irlaec:v:54:y:2018:i:c:p:30-38
    DOI: 10.1016/j.irle.2017.10.002
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    References listed on IDEAS

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    Cited by:

    1. Anton‐Giulio Manganelli, 2021. "Reverse payments, patent strength, and asymmetric information," Health Economics, John Wiley & Sons, Ltd., vol. 30(1), pages 20-35, January.
    2. Erik Hovenkamp & Jorge Lemus, 2022. "Antitrust Limits on Patent Settlements: A New Approach," Journal of Industrial Economics, Wiley Blackwell, vol. 70(2), pages 257-293, June.
    3. Jorge Lemus & Emil Temnyalov, 2020. "Pay-for-Delay with Follow-On Products," Review of Industrial Organization, Springer;The Industrial Organization Society, vol. 56(4), pages 697-714, June.

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