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The Court of Appeals for the Federal Circuit’s Impact on Patent Litigation

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Listed author(s):
  • Matthew D. Henry
  • John L. Turner

Abstract

More than 20 years after the establishment of the Court of Appeals for the Federal Circuit (CAFC), research has yet to explain accurately the new court’s impact on patent litigation, patenting, and inventive activity. To address this shortcoming in the literature, we analyze a novel data set that permits us to consider separately the issues of validity and infringement in comparing the tendencies of the CAFC with those of its predecessor appeals courts. Our analysis of district and appellate decisions spanning 1953–2002 yields a recasting of the “pro-patent†nature of the CAFC: while it has been significantly more reluctant than its predecessors to affirm decisions of invalidity, it has not been more reluctant to affirm “not infringed†decisions. Because of the CAFC’s tendencies, district courts have decided patents to be invalid significantly less often, patentees have appealed decisions of invalidity significantly more often, and infringement has become the more frequently decisive inquiry.

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File URL: http://dx.doi.org/10.1086/498834
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Article provided by University of Chicago Press in its journal The Journal of Legal Studies.

Volume (Year): 35 (2006)
Issue (Month): 1 (01)
Pages: 85-117

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Handle: RePEc:ucp:jlstud:v:35:y:2006:p:85-117
DOI: 10.1086/498834
Contact details of provider: Web page: http://www.journals.uchicago.edu/JLS/

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  1. Lanjouw, Jean O & Schankerman, Mark, 2001. "Characteristics of Patent Litigation: A Window on Competition," RAND Journal of Economics, The RAND Corporation, vol. 32(1), pages 129-151, Spring.
  2. Bronwyn H. Hall, 2005. "Exploring the Patent Explosion," The Journal of Technology Transfer, Springer, vol. 30(2_2), pages 35-48, 01.
  3. Kessler, Daniel & Meites, Thomas & Miller, Geoffrey P, 1996. "Explaining Deviations from the Fifty-Percent Rule: A Multimodal Approach to the Selection of Cases for Litigation," The Journal of Legal Studies, University of Chicago Press, vol. 25(1), pages 233-259, January.
  4. Andrews, Donald W K, 1993. "Tests for Parameter Instability and Structural Change with Unknown Change Point," Econometrica, Econometric Society, vol. 61(4), pages 821-856, July.
  5. Perron, Pierre, 1989. "The Great Crash, the Oil Price Shock, and the Unit Root Hypothesis," Econometrica, Econometric Society, vol. 57(6), pages 1361-1401, November.
  6. Hall, Bronwyn H & Ziedonis, Rosemarie Ham, 2001. "The Patent Paradox Revisited: An Empirical Study of Patenting in the U.S. Semiconductor Industry, 1979-1995," RAND Journal of Economics, The RAND Corporation, vol. 32(1), pages 101-128, Spring.
  7. George L. Priest & Benjamin Klein, 1984. "The Selection of Disputes for Litigation," The Journal of Legal Studies, University of Chicago Press, vol. 13(1), pages 1-56, January.
  8. Marco, Alan C., 2005. "Learning by Suing: Structural Estimates of Court Errors in Patent Litigation," Vassar College Department of Economics Working Paper Series 68, Vassar College Department of Economics.
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Cited by:

  1. Galasso, Alberto & Schankerman, Mark, 2013. "Patents and Cumulative Innovation:Causal Evidence from the Courts," IIR Working Paper 13-16, Institute of Innovation Research, Hitotsubashi University.
  2. Marco, Alan C., 2005. "Learning by Suing: Structural Estimates of Court Errors in Patent Litigation," Vassar College Department of Economics Working Paper Series 68, Vassar College Department of Economics.
  3. Alberto Galasso & Mark Schankerman, 2008. "Patent thickets and the market for innovation: evidence from settlement of patent disputes," LSE Research Online Documents on Economics 25474, London School of Economics and Political Science, LSE Library.
  4. Alberto Galasso & Mark Schankerman, 2008. "Patent Thickets and the Market for Innovation: Evidence from Settlement of Patent Disputes," CEP Discussion Papers dp0889, Centre for Economic Performance, LSE.
  5. Scott E. Atkinson & Alan C. Marco & John L. Turner, 2009. "The Economics of a Centralized Judiciary: Uniformity, Forum Shopping, and the Federal Circuit," Journal of Law and Economics, University of Chicago Press, vol. 52(3), pages 411-443, 08.
  6. Galasso, Alberto & Schankerman, Mark, 2008. "Patent Thickets, Judicial Enforcement and the Market for Innovation: Theory and Evidence from Patent Litigation," CEPR Discussion Papers 6946, C.E.P.R. Discussion Papers.
  7. Amore, Mario Daniele & Schneider, Cédric & Žaldokas, Alminas, 2013. "Credit supply and corporate innovation," Journal of Financial Economics, Elsevier, vol. 109(3), pages 835-855.
  8. Eli Dourado & Alex Tabarrok, 2015. "Public choice perspectives on intellectual property," Public Choice, Springer, vol. 163(1), pages 129-151, April.
  9. Filitz, Rainer & Henkel, Joachim & Tether, Bruce S., 2015. "Protecting aesthetic innovations? An exploration of the use of registered community designs," Research Policy, Elsevier, vol. 44(6), pages 1192-1206.
  10. Cremers, Katrin & Ernicke, Max & Gaessler, Fabian & Harhoff, Dietmar & Helmers, Christian & McDonagh, Luke & Schliessler, Paula & Van Zeebroeck, Nicolas, 2013. "Patent litigation in Europe," ZEW Discussion Papers 13-072, ZEW - Zentrum für Europäische Wirtschaftsforschung / Center for European Economic Research.
  11. Marco, Alan C., 2006. "The Value of Certainty in Intellectual Property Rights: Stock Market Reactions to Patent Litigation," Vassar College Department of Economics Working Paper Series 82, Vassar College Department of Economics.

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