Delayed entry settlements at the patent office

Research output: Contribution to journalArticle

Abstract

The Patent Trial and Appeal Board (PTAB) is a recently-formed division of the Patent Office in which patents can be challenged as invalid, and which differs from federal courts in a number of respects. We investigate whether monopolist-patentees and their prospective rivals are using the PTAB—which has not previously received antitrust attention—as a platform for striking settlements that delay the rivals’ entry. Such settlements are common in pharmaceutical markets, and are typically antitrust violations in cases where the patentee pays the challenger (“pay for delay”). However, problematic statutory inducements lead to excessively-delayed competition even in lieu of such payments. Our empirical findings suggest that delayed entry settlements are now commonly executed in the PTAB, and that they comprise a large majority of all PTAB settlements reached between pharmaceutical rivals. Further, nearly half of the delayed entry settlements were reached after the relevant patent claims were deemed “reasonably likely” to be invalid.

Original languageEnglish (US)
Pages (from-to)30-38
Number of pages9
JournalInternational Review of Law and Economics
Volume54
DOIs
StatePublished - Jun 2018

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patent
appeal
pharmaceutical market
pharmaceutical
Patents

Keywords

  • Actavis
  • Antitrust
  • Delayed entry
  • PTAB
  • Patent Trial and Appeal Board
  • Patent settlements
  • Pay for delay
  • Pharmaceuticals
  • Reverse payment

ASJC Scopus subject areas

  • Finance
  • Economics and Econometrics
  • Law

Cite this

Delayed entry settlements at the patent office. / Hovenkamp, Erik; Lemus Encalada, Jorge Agustin.

In: International Review of Law and Economics, Vol. 54, 06.2018, p. 30-38.

Research output: Contribution to journalArticle

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