Study On Legal Regulations Of Patent Malicious Litigation

Along with the raising of IPRs' economic status and strategic position, more attentions are paid on patent. Following right protection there is abuse of right, Patent Malicious Litigation gradually becomes to be a question that feaze not only the counterpart, but also lawmakers, justicers and scholars.28th December,2008, the new Patent Law is passed. Though the new Patent Law stipulates some relavant provisions to correlative subject, there are no express provisions to Patent Malicious Litigation. This all lead to that in juridical practice, it is amphibolous to deal with Malicious Litigation.The patent right in contemporary patent system means the exclusive sole right to invention and creation in some certain time that granted by the State to citizen, corporation or other organizations. Commonly, Malicious Litigation means the activity that in order to achieve improper purpose, the doer accuses or litigates maliciously, or abuses procedure while lacking of factual basis and legal reason, which harm other person's legal interest. Patent Malicious Litigation means that the patentee takes a legal action which is unnecessary and not-worth-litigating while lacking of legal fact and reason, leading to the accused or third party's property or other interest suffering damage, but doesn't acquire the court's support at last. Patent Malicious Litigation divides into Unnecessary Litigation (Arbitrary Litigation), Non-operative Patent Malicious Litigation and Slack Litigation. Patent Malicious Litigation has the features of high invisibility, difficult to determine, long-time lasting, destroying the normal market competing order, and so on. Main reasons due to Patent Malicious Litigation are:expansion and alienation of patent system's function; inherent defect of current patent legal system; malicious utilization of questionable patent; paleness of legal consciousness and absence of social integrity; and the negative affect of litigation to the defendant.Balancing of Interest Theory, Prohibit Abusing of Rights Theory and Good Faith Doctrine are theoretical basis to regulate Patent Malicious Litigation, indicating regulation necessity and theoretical grounds. Relative provisions in Patent Law, Civil Law, Civil Procedure Law and Competition Law indicate the legal basis to regulate Patent Malicious Litigation.Patent Malicious Litigation's constitutions include:the plaintiffs subjective aspect is intent; judicial act is lack of lawful basis; facts of damage; and cause-and-effect relationship between facts of damage and plaintiffs judicial acts. We should follow these four aspects strictly to determine an litigant action is Patent Malicious Litigation or not.Patent Malicious Litigation not only disturbs normal competing order, but also wastes judicial resources greatly, so, to this subject, we shall search counterplan actively, suiting the remedy to the case, to regulate illegal acts so that to maintain normal social activities and sequence of production. To find measures that can overcome Patent Malicious Litigation finally, we should:improve Patent Malicious Litigation counter-compensation system; establish punitive damages system; improve related lawsuit withdraw system; improve non-infringement affirmation litigation system; rigor preliminary examination to patent application so as to improve patent quality and reinforce related supporting measures to improve our regulation to Patent Malicious Litigation.This thesis adopts the approach that firstly raise, then analyse, and finally solve the problem. Following analysing and studying, the thesis offers its own proposals, especially establishing punitive damages system is a brand new visual angle, wishing to know more about Patent Malicious Litigation, so as to make practical analysis and research of Patent Malicious Litigation problem, and also wish to make theoretical studies to ulterior research of this problem.