Tribunal Specialization and Institutional Targeting in Patent Enforcement

Recent scholarship on nonmarket strategies has sought to understand organizational decisions to target specific institutional venues for nonmarket actions. We contribute to this emerging literature by studying institutional targeting between specialized and general-purpose tribunals, which are available to resolve disputes in a number of settings. Whereas prior work on institutional targeting has primarily focused on the differences in the policy preferences of public actors and the susceptibility of policy positions to influence activities, we focus on the differences in expertise and procedural flexibility that typically accompany tribunal specialization. We develop a theory about targeting decisions (forum shopping) in such contexts, which suggests two main drivers of tribunal targeting—expected settlement and expected returns. Drawing on these mechanisms, we formulate hypotheses linking tribunal targeting decisions to firm-level attributes such as (market) strategic stakes, institutional distance from competitors, and tribunal-specific capabilities. Our hypotheses are tested using a novel data set of patent enforcement against U.S. imports, which also sheds light on nonmarket strategies in patents.