Patent Malicious Litigation And Its Legal Regulation

The continuous empowerment and improvement of laws in the world today has given citizens more rights and has become the main way and trend to better protect human rights.With the continuous improvement and improvement of laws such as worldwide patent law and civil procedure law,the rights they have granted to rights holders have also become larger and larger.But we should note that the empowerment of rights and the abuse of rights are always accompanied by each other.Once the rights violate the appropriate principle in the process of use,it will inevitably result in the abuse of rights.In all cases of abuse of rights,malicious litigation is a typical category.The same is true in the field of patents.The phenomenon of patent malice in the patent field in these years is one of the manifestations of the patent principle that violates the principle of moderation.Moreover,from the current world situation and the domestic situation in China,patent malicious litigation emerges endlessly,and there is a tendency to gradually expand,and the various hazards arising therefrom are gradually emerging.Therefore,it is urgent and urgent to formulate effective countermeasures.However,the basic content of the meaning,constituent elements and certification standards of patent malicious litigation in China has not been directly and specifically stated and stipulated directly in the current law,which has led to the fact that the courts in our country are currently dealing with such cases.In the judicial practice,there are many differences due to the unification of the standard for the standard.In addition,China's legal theory circles have different opinions and conclusions on the basic issues of patent malicious litigation.Patent malicious litigation is a kind of malicious litigation in the abuse of rights in terms of its nature and manifestation.For the concept of "malicious litigation",it is clearly in the law of tort law in common law countries.Describe and stipulate clearly as one of the many violations.The civil law system is different,and all its current laws do not clarify it as a legal concept,but only indirectly in some of its judicial precedents and certain legal provisions.There is a relationship between patent malice and malicious litigation,including inclusion,speciality and generality,which means that the former is only a special type of the latter in the field of patents.There are two particularly prominent features of patent malicious litigation:one is that from the determination of malicious prosecution of such cases,the malicious prosecution of the perpetrator is often based on formal legal patents,so the court It is even more difficult to detect and judge such cases;the second is that the perpetrator's initiative to file a patent malice has the meaning of being drunk and not for the illegal purpose of alcohol,that is to say,the perpetrator does not really care about the litigation outcome of the case itself,but What concerns is whether it can use this lawsuit to achieve the illegal purpose of attacking and damaging the relatives and benefiting them.As long as this goal is achieved,it is the greatest victory for the perpetrator.At present,the development of patented malicious litigation is becoming more and more fierce because of its diversity and complexity.At the same time,its harm is multifaceted,and its seriousness cannot be underestimated.In terms of the standard of identification,the constituent elements of patent malicious litigation are not the same as the four constituent elements of general tort liability.Subjectively,the actor must be required to be in a deliberate state,and there is something special in the malicious determination;in his behavior,there is no need to satisfy the condition that the behavior is illegal in the four elements of general infringement,but There is no legal basis for requiring the perpetrator's litigation.Although the civil law countries represented by Germany,France and Japan have not made "malicious litigation" or "patent malice" as a legal concept in their respective existing laws,they are not ignoring such infringements.There are no initiatives,but indirect legal regulation through relevant legal principles and rules in their respective existing laws.The case law countries represented by the United Kingdom and the United States are relatively straightforward and clear about the legal regulation of "malicious litigation" or "patent malice litigation".The tort law is clearly and clearly stated in the form of direct and plain text.And there are other legal provisions and jurisprudence supplements and improvements.China's legal regulation of "malicious litigation" or "patent malice" is basically the same as that of civil law countries.There is no legal provision for direct regulation of it.Only the legal principles and related expressions and regulations of indirect regulation are carried out from the side.Judging from the contents of all current laws in China,China's regulation of all aspects of patent malicious litigation is obviously lacking and incomplete,and it is urgent to enrich and improve it.However,the governance of patent malicious litigation cannot be played by the single-handedness of national legislation alone,but needs to be improved from national legislation,judiciary and other aspects,so as to achieve common efforts in all aspects.The effect of patented malicious litigation on comprehensive rectification.