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'Pay for Delay': What Do We Disagree On?

26 Pages Posted: 17 Dec 2013  

Pierre Marcel Regibeau

Imperial College; Charles River Associates

Date Written: December 16, 2013


Antitrust concerns about “Pay For Delay” patent settlements are based on two theory of harms, one that stresses the need for Courts to review the validity of patents and one that emphasises the “probabilistic” nature of patent rights. The main weakness of the first theory of harm is that it fails to explain why some forms of patent settlements would be less desirable than others. The “probabilistic” theory of harm raises fundamental questions about the legal obligations of a patent-holder, the type of uncertainty that should be reflected in the probabilistic nature of the patents and whether the theory can be applied to anything but the simplest PFD settlements. The paper also discusses the likely effect of a PDF ban on innovation and reviews both the European approach to recent and on-going PDF cases and the recent Actavis decision of the US Supreme Court.

Keywords: Patents, Litigation, Settlements

JEL Classification: K21, K41, L24, L41

Suggested Citation

Regibeau, Pierre Marcel, 'Pay for Delay': What Do We Disagree On? (December 16, 2013). Available at SSRN: or

Pierre Marcel Regibeau (Contact Author)

Imperial College ( email )

South Kensington Campus
Exhibition Road
London, Greater London SW7 2AZ
United Kingdom

Charles River Associates ( email )

1201 F. St. NW
Ste. 700
Washington, DC 20004
United States

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