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A theory of pre-filing settlement and patent assertion entities

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  • He, Leshui

Abstract

An informed (prospective) plaintiff can send a take-it-or-leave-it demand to an uninformed (prospective) defendant with the threat of a lawsuit that may not be credible. In this context, the well-known perfect separating equilibrium in litigation bargaining game (Reinganum and Wilde, 1986) no longer exists, and all perfect Bayesian equilibria with pre-filing settlements exhibit a cutoff feature. These equilibria offer an explanation for the distinctive behaviors of Litigation PAEs, who aggressively file lawsuits for settlements, and Portfolio PAEs, who obtain licensing revenues through pre-filing settlements. Our comparative statics results lead to testable hypotheses regarding how litigation costs and the plaintiff’s reputation affect the settlement amount before and after the cases are filed, and the frequency of lawsuits from a given plaintiff.

Suggested Citation

  • He, Leshui, 2020. "A theory of pre-filing settlement and patent assertion entities," International Journal of Industrial Organization, Elsevier, vol. 70(C).
    • Handle: RePEc:eee:indorg:v:70:y:2020:i:c:s0167718720300400
    DOI: 10.1016/j.ijindorg.2020.102618
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    1. Jay Pil Choi & Heiko Gerlach, 2018. "A Model Of Patent Trolls," International Economic Review, Department of Economics, University of Pennsylvania and Osaka University Institute of Social and Economic Research Association, vol. 59(4), pages 2075-2106, November.
    2. Yasutora Watanabe, 2005. "Learning and Bargaining in Dispute Resolution: Theory and Evidence from Medical Malpractice Litigation," 2005 Meeting Papers 440, Society for Economic Dynamics.
    3. Kathryn E. Spier, 1992. "The Dynamics of Pretrial Negotiation," The Review of Economic Studies, Review of Economic Studies Ltd, vol. 59(1), pages 93-108.
    4. Chen Zhiqi, 2006. "Nuisance Suits and Contingent Attorney Fees," Review of Law & Economics, De Gruyter, vol. 2(3), pages 363-370, October.
    5. Lucian Arye Bebchuk, 1984. "Litigation and Settlement under Imperfect Information," RAND Journal of Economics, The RAND Corporation, vol. 15(3), pages 404-415, Autumn.
    6. William H.J. Hubbard, 2016. "Sinking Costs to Force or Deter Settlement," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 32(3), pages 545-585.
    7. Amy Farmer & Paul Pecorino, 2017. "Costly Voluntary Disclosure with Negative Expected Value Suits," American Law and Economics Review, American Law and Economics Association, vol. 19(2), pages 486-503.
    8. Lucian Arye Bebchuk, 1998. "Negative Expected Value Suits," NBER Working Papers 6474, National Bureau of Economic Research, Inc.
    9. Bruno Deffains & Eric Langlais, 2011. "Informational externalities and settlements in mass tort litigations," European Journal of Law and Economics, Springer, vol. 32(2), pages 241-262, October.
    10. Bruno B. Deffains & Eric E. Langlais, 2011. "Informational externalities and settlements in mass tort litigations," Post-Print hal-01001175, HAL.
    11. Andrew F. Daughety & Jennifer F. Reinganum, 2011. "A dynamic model of lawsuit joinder and settlement," RAND Journal of Economics, RAND Corporation, vol. 42(3), pages 471-494, September.
    12. Jay Pil Choi & Heiko Gerlach, 2017. "A Theory of Patent Portfolios," American Economic Journal: Microeconomics, American Economic Association, vol. 9(1), pages 315-351, February.
    13. Farmer, Amy & Pecorino, Paul, 1999. "Legal Expenditure as a Rent-Seeking Game," Public Choice, Springer, vol. 100(3-4), pages 271-288, September.
    14. A. Mitchell Polinsky & Steven Shavell (ed.), 2007. "Handbook of Law and Economics," Handbook of Law and Economics, Elsevier, edition 1, volume 2, number 2.
    15. Bar, Talia & Kalinowski, Jesse, 2019. "Patent validity and the timing of settlements," International Journal of Industrial Organization, Elsevier, vol. 67(C).
    16. Jorge Lemus & Emil Temnyalov, 2017. "Patent privateering, litigation, and R&D incentives," RAND Journal of Economics, RAND Corporation, vol. 48(4), pages 1004-1026, December.
    17. Jeong-Yoo Kim, 2004. "Filing a Nuisance Claim to Induce Successive Lawsuits," American Law and Economics Review, American Law and Economics Association, vol. 6(1), pages 208-216.
    18. Barry Nalebuff, 1987. "Credible Pretrial Negotiation," RAND Journal of Economics, The RAND Corporation, vol. 18(2), pages 198-210, Summer.
    19. In-Koo Cho & David M. Kreps, 1987. "Signaling Games and Stable Equilibria," The Quarterly Journal of Economics, President and Fellows of Harvard College, vol. 102(2), pages 179-221.
    20. Miceli, Thomas J., 1993. "Optimal deterrence of nuisance suits by repeat defendants," International Review of Law and Economics, Elsevier, vol. 13(2), pages 135-144, June.
    21. Michael J. Meurer, 1989. "The Settlement of Patent Litigation," RAND Journal of Economics, The RAND Corporation, vol. 20(1), pages 77-91, Spring.
    22. Daniel Klerman & Yoon-Ho Alex Lee & Lawrence Liu, 2018. "Litigation and Selection with Correlated Two-Sided Incomplete Information," American Law and Economics Review, American Law and Economics Association, vol. 20(2), pages 382-459.
    23. Amy Farmer & Paul Pecorino, 2007. "Negative Expected Value Suits in a Signaling Model," Southern Economic Journal, John Wiley & Sons, vol. 74(2), pages 434-447, October.
    24. Kiebzak, Stephen & Rafert, Greg & Tucker, Catherine E., 2016. "The effect of patent litigation and patent assertion entities on entrepreneurial activity," Research Policy, Elsevier, vol. 45(1), pages 218-231.
    25. Yeon-Koo Che & Kathryn E. Spier, 2008. "Exploiting Plaintiffs through Settlement: Divide and Conquer," Journal of Institutional and Theoretical Economics (JITE), Mohr Siebeck, Tübingen, vol. 164(1), pages 4-23, March.
    26. Daniel Klerman & Yoon-Ho Alex Lee, 2014. "Inferences from Litigated Cases," The Journal of Legal Studies, University of Chicago Press, vol. 43(2), pages 209-248.
    27. 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.
    28. Yeon-Koo Che, 2002. "The Economics of Collective Negotiation in Pretrial Bargaining," International Economic Review, Department of Economics, University of Pennsylvania and Osaka University Institute of Social and Economic Research Association, vol. 43(2), pages 549-576, May.
    29. Che, Yeon-Koo, 1996. "Equilibrium formation of class action suits," Journal of Public Economics, Elsevier, vol. 62(3), pages 339-361, November.
    30. A. Mitchell Polinsky & Steven Shavell (ed.), 2007. "Handbook of Law and Economics," Handbook of Law and Economics, Elsevier, edition 1, volume 1, number 1.
    31. Bebchuk, Lucian Arye, 1988. "Suing Solely to Extract a Settlement Offer," The Journal of Legal Studies, University of Chicago Press, vol. 17(2), pages 437-450, June.
    32. Jennifer F. Reinganum & Louise L. Wilde, 1986. "Settlement, Litigation, and the Allocation of Litigation Costs," RAND Journal of Economics, The RAND Corporation, vol. 17(4), pages 557-566, Winter.
    33. Bebchuk, Lucian Arye, 1996. "A New Theory Concerning the Credibility and Success of Threats to Sue," The Journal of Legal Studies, University of Chicago Press, vol. 25(1), pages 1-25, January.
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    Cited by:

    1. Bernhard Ganglmair & Christian Helmers & Brian J Love, 2022. "The Effect of Patent Litigation Insurance: Theory and Evidence from NPEs [“Valuable Patents]," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 38(3), pages 741-773.
    2. Klapper, Felix B. & Siemering, Christian, 2024. "Effects of patent privateering on settlements and R&D under sequential market entry," Information Economics and Policy, Elsevier, vol. 66(C).

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    More about this item

    Keywords

    Pre-filing settlement; Patent assertion entities;

    JEL classification:

    • K11 - Law and Economics - - Basic Areas of Law - - - Property Law
    • K41 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior - - - Litigation Process
    • L13 - Industrial Organization - - Market Structure, Firm Strategy, and Market Performance - - - Oligopoly and Other Imperfect Markets
    • L52 - Industrial Organization - - Regulation and Industrial Policy - - - Industrial Policy; Sectoral Planning Methods
    • O34 - Economic Development, Innovation, Technological Change, and Growth - - Innovation; Research and Development; Technological Change; Intellectual Property Rights - - - Intellectual Property and Intellectual Capital

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