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

  • Matthew D. Henry
  • John L. Turner

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. Donald W.K. Andrews, 1990. "Tests for Parameter Instability and Structural Change with Unknown Change Point," Cowles Foundation Discussion Papers 943, Cowles Foundation for Research in Economics, Yale University.
  2. 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 129-51, Spring.
  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 233-59, January.
  4. Bronwyn Hall, 2004. "Exploring the patent explosion," ESRC Centre for Business Research - Working Papers wp291, ESRC Centre for Business Research.
  5. 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 101-28, Spring.
  6. Perron, P, 1988. "The Great Crash, The Oil Price Shock And The Unit Root Hypothesis," Papers 338, Princeton, Department of Economics - Econometric Research Program.
  7. 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.
  8. 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.
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