Research On Patent Malicious Litigation

Patent malicious litigation is a patent holder's misuse of intellectual property rights with unlawful purposes out of litigation, which not only infringes the other party's legitimate rights and interests, but also disrupts the market competition and undermines the authority of the jurisdiction. Due to scarcity of specific provisions on patent malicious litigation in China's current legal system, however, divergence in justice occurs during proceedings. This paper discusses the defining standards of patent malicious litigation with specific cases, compares and analyzes the juristic experiences in patent malicious litigation from other countries or governmental organizations, and proposes to make attempt to establish a coordinated and multi-level juristic mode which is mainly based on "Patent Law", and supplemented by "Tort Liability Act", "Anti-Unfair Competition Law" and "Anti-Monopoly Law", etc., to effectively resolve the problems on patent malicious litigation.According to the definition of misuse of intellectual property rights, the first chapter states that patent malicious litigation is the sub notion of misuse of patent rights, namely, the patent legal owner's malicious litigation of others'infringement during intellectual property litigation by using his patent right, especially the new utility or appearance design patent without actual approval, with the purpose of obtaining illegal benefit outside litigation. The chapter also briefly discusses the social harm of patent malicious litigation, and considers through case studies that the defining standards of patent malicious litigation can refer to the four-element model of the general tort liability. The second chapter is the comparative analysis of the legislation and judgment experiences in similar malicious civil litigation from the United States, European Union and the TRIPS agreement and typical civil law countries. It concludes that despite the chaotic side, the United States'dual solution of using both patent law and antitrust law more advantageous than the one-way solution adopted by the European civil law countries. China can learn from their experience, both directly in the procedural and substantive law of the "Patent Law " on the establishment of a patent lawsuit against malicious compensation mechanism to effectively resolve patent malicious litigation.The third chapter discusses solutions to patent malicious litigation from the perspectives of China's legislation and jurisdiction. The author believes that: first, improving the existing confirmed non-infringement of patent litigation in China's judicial practices can play a preventive role in patent malicious litigation; second, the most important and urgent task at present is to establish the anti-compensation system on the basis of"Patent Law"; Third, through improving and establishing the above-mentioned two measures, and supplemented by China's existing laws and regulations, patent malicious litigation can be prevented and regulated.Finally, there is a conclusion of the whole dissertation, which covers the major arguments discussed before.