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Legalist and realist decision-making in patent law: Validity cases in Germany

Author

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  • Hoffmann, Jakob

    (LMU Munich)

  • Glückler, Johannes
  • Khuchua, Tamar
  • Lachapelle, Francois
  • Lazega, Emmanuel
  • Zipf, Marius

Abstract

While realist approaches towards judicial decision-making have become predomi- nant, their appropriateness is much less obvious for specialized or technical fields of law, such as patent litigation, and evidence is much scarcer than for generalist courts. Addressing this scarcity, the paper assesses judge-level variation in deci- sion outcomes based on a sample of 1,722 collegial decisions on patent validity at the German Federal Patent Court. Using a Bayesian mixed membership multilevel model, we find that after controlling for variation due to other contextual factors, there remains significant statistical variation in the propensity to nullify a patent at the level of individual judges. However, judge effects are relatively weak and uncer- tain, indicating mitigation of individual deviation through collegiality. We conclude by discussing the relevance of consistent judicial outcomes beyond the studied con- text and especially in transnational harmonization processes, such as initialized by the recent establishment of the Unified Patent Court.

Suggested Citation

  • Hoffmann, Jakob & Glückler, Johannes & Khuchua, Tamar & Lachapelle, Francois & Lazega, Emmanuel & Zipf, Marius, 2024. "Legalist and realist decision-making in patent law: Validity cases in Germany," SocArXiv p354r, Center for Open Science.
    • Handle: RePEc:osf:socarx:p354r
    DOI: 10.31219/osf.io/p354r
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    References listed on IDEAS

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      • 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 - Leibniz Centre for European Economic Research.
      • Katrin Cremers & Max Ernicke & Fabian Gaessler & Dietmar Harhoff & Christian Helmers & Luke Mc Donagh & Paula Schliessler & Nicolas van Zeebroeck, 2017. "Patent litigation in Europe," ULB Institutional Repository 2013/226239, ULB -- Universite Libre de Bruxelles.
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