Malicious Litigation In The Case Of Patent Infringement

In 2008,"Outline of National Intellectual Property" proposed China's intellectual property rights strategic objectives is:Until 2020,should build China into intellectual property rights creation,utilization,protection and management of high level national.In recent years,the rapid development of China's intellectual property rights,the progress in the number of patent applications is also very significant.Our patent applications since 2011,China has surpassed the United States and Japan ranked first in the world,and has received the world patent superpower for many years.Behind China's huge number of patent applications,but also created some big problems,malicious patent litigation is one of them.Patent malicious litigation is a kind of abuse of right of action.The perpetrator of the litigation as a means of intent to prejudice the legitimate interests of others or for their own illicit purposes.Malicious prosecution,not only damaging the legitimate rights and interests of the other party,but also taking seriously affect to the market competition order,hinder the development of innovative technology.Malicious litigation in patent infringement cases is a typical case of patent malicious litigation in practice.In this paper,the case as the breakthrough point,through the analysis of typical cases,found in the judicial practice,the same or similar cases in different courts and the results of the trial is completely different.Thus,provoke thinking patent malicious litigation issues.First,combined with China's judicial practice,describes the reasons for China's patent malicious prosecution at this stage to define the difficulties,including:overlap between malicious prosecution and related concepts,there are differences between different academic perspectives;the provisions of the law for malicious litigation is still blank,resulting in practice recognized standards are not unified;the characteristic of malicious patent litigation and patent system,to identify malicious patent litigation more difficult.On this basis,from a legal point of view what is malicious prosecution.Comparison of foreign law and international law on malicious litigation,in particular the relevant provisions of the patent for malicious litigation.Thereafter,the academic analysis for patent litigation malicious identified different points of view,according to the characteristics of malicious litigation and the patent system,put forward determining the constituent elements of patent malicious prosecution can not simply be directly applied to general tort identified.After a detailed analysis,this paper argues,the constituent elements of malicious patent litigation should include:only contains intentional subjective fault;absence of a lawful exercise of the right to appeal a reasonable basis;the fact that caused the damage,including direct and indirect losses;the exercise of the right of appeal and the damage having a causal relationship between the facts.Finally,we propose several ways to improve the patent infringement case of malicious litigation legal regulation.This paper argues that,resolving patent litigation judgment malicious disunity in practice,focused on this issue is that improving civil substantive law on malicious litigation.Improvement of the patent litigation malicious anti-pay system,protect the legitimate rights of the victims to get effective relief.Perfection of confirmation of non infringement of patent lawsuit,try to control the malicious lawsuit brought to the party damage,provide some relief for the victims in the patent malicious litigation procedure.The basic reason is that the patent malicious litigation of China,utility model and design patents only in the form of review,not a substantive review,leading to the grant of the patent right for a large number of patent practice.Therefore,this paper suggested improving patent quality by strengthening the review of the way,improving the existing patent review mode,establishing the pretrial examination system,making the evaluation report system can play a role.