Research On The Cognizance Of Malicious Initiation Of Intellectual Property Litigation

Promoted by the implementation of country’s in-depth innovation-driven development strategy,the level of intellectual property protection in China has been continuously improving,and the number of applications for intellectual property registration and grants has increased year by year.However,the number of intellectual property infringement litigation cases also increases year by year,and malicious litigation regarding intellectual property disputes occur from time to time.The imperfection of the intellectual property system is one of the causes of malicious intellectual property lawsuit.Some people apply for copyright based on other people’s work,or squat trademarks that have been used by other companies,or apply for patent based on the prior art.These acts are against the principle of honesty and trustworthiness.The claimants are intended to attack competitors and achieve the purpose beyond litigation by filing the Intellectual Property proceedings with malicious intention and without factual or legal basis However,China’s laws do not clearly stipulate these acts as malicious litigation,and there are only scattered and unsystematic provisions.An unclear definition of "malicious intention" in filing proceedings leads to uncertain judgments.Even in the same cases,the decisions can be different,which affects judicial authority and fairness.In addition,it is very complex and difficult to identify the malicious intellectual property litigation.Therefore,some enterprises purchase a large number of junk patents to initiate intellectual property infringement litigation.Due to the long litigation period and insufficient compensation for damages,it is very easy to cause the infringed "win the lawsuit and lose the market",seriously damaging the right of the infringed to use legal means to protect and damaging the market vitality.At present,the legal protection of malicious intellectual property litigation is still weak.There is a big gap between judicial protection and the expectation of the victim in reality.Based on this,the author makes an investigation of the litigation cases from 2011 to 2018 on the grounds of "disputes over intellectual property damage caused by malicious intentions",in order to summarize the commonness of the connotation of "malicious intellectual property litigation" in the courts.The Tort Law and the literature related to malicious intellectual property lawsuits are investigated and studied in order to clarify the problems and put forward suggestions on regulatingmalicious intellectual property lawsuits.Based on the analysis of judicial practice and literature research,this paper makes an in-depth analysis of the current situation and existing problems of malicious intellectual property litigation,and puts forward some practical suggestions to curb malicious intellectual property litigation in China.Firstly,the article analyses the basic theory of malicious intellectual property litigation,identifies and analyses malicious intellectual property litigation on the basis of comparing related concepts,and focuses on the analysis the meaning of "malicious" in malicious intellectual property litigation,elaborates the liability for damages of malicious intellectual property litigation,and discusses compensation for the later part,laying ground for discussing the insufficient compensation in the later part.Secondly,it focuses on the analysis and elaboration of the factual situation of malicious intellectual property litigation in China and the existing problems in the regulation of malicious intellectual property litigation;Finally,it puts forward a series of specific operational suggestions on improvement of substantive law,procedural law regulation and relevant administrative system establishment on the basis of the previous analysis and discussion.