How Do Legal Surprises Drive Organizational Attention and Case Resolution? An Analysis of False Patent Marking Lawsuits

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Abstract: Legal surprises are unexpected suits or actions in which plaintiffs rely on claims or precedents that may be obscure, unfamiliar, or unknown to the defendants. Our study explores false patent marking suits, a unique type of patent-related legal surprise involving allegations of defendants marking products with ineligible patent numbers to deceive customers and/or deter competitors. An abrupt shift in U.S. Federal Courts’ interpretation of intellectual property rights (IPRs) policy amplified plaintiff incentives for filing these suits while escalating defendant penalties for proven violations. Handling costly legal surprises such as false patent marking suits requires focused attention from managers. Our core premise is that temporal and evidential cues in the timelines and storylines of plaintiffs’ legal narratives in surprise suits attract defendants’ organizational attention. We hypothesize about temporal focus (past, present, and future) and evidentiary reasoning (relevance, credibility, and inferential power) as attention cues and possible predictors of the mode (litigation or negotiation) and timing of case resolution. We apply automated content analysis to official court records for 992 false patent marking cases (2009–2011) and quantify competing risks using hazard models. We find that differences in temporal focus and evidentiary reasoning in the legal narratives of surprise suits are significant predictors of case resolution mode and timing. We also find that defendants countersuing to redirect plaintiffs’ attention is an effective negotiating tactic. We discuss the economic significance and strategic implications of our empirical findings on legal surprises, attention, case resolution mode and timing, and the unintended consequences of IPR policy changes.

Keywords: attention, patents, litigation, intellectual property rights (IPRs), innovation policy