Antitrust & Competition Policy Blog

Editor: D. Daniel Sokol
University of Florida
Levin College of Law

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Monday, June 15, 2009

Patent Settlements as a Barrier to Entry

Posted by D. Daniel Sokol

Anne Duchene, Drexel University - Department of Economics & International Business and Konstantinos Serfes, Drexel University - Department of Economics & International Business examine Patent Settlements as a Barrier to Entry.

ABSTRACT: Empirical studies have found that most patent litigations are resolved through settlements rather than trials.Moreover, license fees negotiated in settlement agreements have become very large. We formulate a model of sequential entry with an incumbent patent holder, multiple potential entrants and asymmetric information about the validity of the contested patent (patent strength) between firms that are already in the market and future potential entrants. Within this framework we show that patent settlements between the incumbent and the first entrant can be mutually beneficial even when the cost of trial is zero and the settlement agreement takes the form of a simple fixed license fee. For intermediate patent strengths, settlements are a tool for further entry deterrence. The two parties agree on a high settlement amount which sends a credible signal to "outsiders" that the incumbent's patent is not weak and therefore further entry will not be profitable. This provides a novel explanation for the role of settlements and to the recent observation of high license fees negotiated in settlement agreements. Our analysis demonstrates than even non-reverse settlements that entail only a fixed fee can be anticompetitive because they are used to block further entry.

http://lawprofessors.typepad.com/antitrustprof_blog/2009/06/patent-settlements-as-a-barrier-to-entry.html

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