Research On Patent Abuse Defence In Patent Infringement Litigation

China has become a leading patent country since the three kinds of patent applications have jumped to the top of the world,although its patent legislation history is only about thirty years.With the rapid development of the Chinese economy,and the gradual perfection in legal system of intellectual property rights,enterprises all over the world,including enterprises in China are a large number of patent layout and consequent patent abuse,especially in patent infringement litigation of patent abuse gradually increased.At present,the legislation of patent abuse in our country is relatively weak,especially in the patent infringement litigation,the lack of a unified system of defense.Therefore,it is necessary to strengthen the research in this area.Under this circumstance,this paper firstly analysis the concept and legal content of the abuse of patent in infringement litigation,and classified the patent abuse by the validity of patent,and discussed in detail the legal connotation and constituent elements both of the abuse of patent litigation rights and the abuse of patent rights.In this paper,according to the provisions of the patent law,the interpretation of "patent right" was in a limited way,that is,"the patent right " only refers to the legitimate rights.Based on the granted patent which is lawful and effective,and is still within the term of protection,exercise occurred in the process of abuse behavior classified as patent rights abuse category,and the usage of defect patent filed patent litigation behavior included in the patent right abuse category.The subjective aspect of the abuse of patent litigation rights only contains intention,and the subjective aspect of the abuse of patent rights contains both intention and fault.Secondly,the paper discussed on the legal sources of the law of patent litigation defense system by comparison,that the patent misuse defense originated in the U.S.equity method,in which the patent right abuse on defense of is the plaintiff's acts of bad faith,patent misuse defense basis is plaintiff ultra patent behavior.Then the paper discussed the exercise of patent misuse defense need to meet three basic conditions.One is the plaintiff had patent abuse behavior,the plaintiff has a subjective patent abuse the fault,three is the plaintiff from abusing the patent act objectively the defendant as a result of the damage,and there is a causal relationship between the abuse behavior and the damage.On the basis of the above studies,the paper finally discussed the necessity to construct the plea of patent misuse in our country.On one hand it can establish a sound legal system for the regulation of patent abuse behavior.On the one hand it can provide direct defense way for the accused infringer in patent infringement cases,and improving trial efficiency,curbing the patent abuse.The paper also suggested that the principle clause and the legal consequence of the patent abuse should be added into the Patent Law,while the specific provisions of the patent abuse could be listed in the Rules for the implementation of Patent Law.