Research On The Regulation Of Malicious Litigation Of NPE

Malicious litigation is a familiar and unfamiliar term for legal persons,familiar with the fact that it has been frequently used in the news,in the media or other public channels lately.Step becomes the cradle of malicious lawsuits? This is all we need to think about.Furthermore,the topic of this paper is the regulation of malicious litigation for non-practicing entities,but at the beginning,malicious litigation is discussed,which is also inextricably linked.The definition and identification of malicious litigation is the most crucial issue in the regulation of malicious litigation of non-practicing entities.This definition and identification needs to draw lessons from the concept of malicious litigation in our civil law,and compare with it or draw lessons from the concept of malicious litigation in civil law to implement the non-patent in this paper.The behavior of malicious litigation is defined and suggestions for regulation are given.As the domestic intellectual property environment is increasingly optimized,especially the amount of statutory compensation for intellectual property rights is further increased,the burden of proof for compensation is reduced,and punitive damages for intentional infringement of patents are increased.In the future,the infringement cost of patents and even intellectual property rights will be higher and higher,and the average amount of litigation compensation will be higher and higher.Some innovation-driven enterprises will pay more and more attention to intellectual property rights.However,relatively,such an environment will also provide a goodpatent hooliganism for foreign non-practicing entities.The living environment,therefore,for enterprises,in the fourth amendment of the patent law under the opportunity and premise,or need to take up the legal weapon,the patent law in the new amendment of the spear to attack the shield of non-practicing entities.To return to the truth,we look at the concept of malicious litigation in civil law,some scholars have described the concept of malicious litigation in civil law as false litigation.In fact,false lawsuit should belong to one kind of malicious lawsuit,but it is not rigorous enough to say malicious lawsuit as false lawsuit.In fact,false lawsuit can only be regarded as a manifestation of malicious lawsuit.False litigation,also known as litigation fraud,mainly refers to the plaintiff and the defendant colluded in advance,fictitious facts of the case,litigation,so as to achieve illegal purposes,where the illegal purpose,may be to harm the interests of third parties,may also be to provide the plaintiff or the defendant's popularity or exposure,or may only be for a certain purpose.Procrastinate time for a purpose or an effective element.Another manifestation of malicious litigation may be that the plaintiff,in order to achieve his own illegal purpose,maliciously fabricates the facts of the case,brings a lawsuit against the defendant,and the defendant is forced to answer the lawsuit or to mediate.Thus increasing the defendant's litigation costs and time costs.Here we say that the plaintiff malicious litigation defendant,the purpose may be the following:first,delay time;second,increase the cost of the defendant's litigation,trying to force the defendant to compromise;third,by pre-court mediation to pressure the defendant,trying to bargain to achieve their own purposes.To sum up,we can conclude that the concept of malicious litigation,that is,one party or both parties,out of intentional subjective intent,by means of fictitious facts of the case to prosecute or attempt to achieve their own illegal purposes through litigation,for such malicious litigation,or on the surface wearing the cloak of reasonable litigation.Actually,we can regard this kind of lawsuit as malicious lawsuit.Patent malicious litigation.Patent malicious litigation,as the name implies,is a malicious civil or even criminal procedure in the field of patent.To talk about malicious patent litigation,we first look at the legal basis of patent litigation,civil lawwithin the scope of the patent law,Article 60 recorded that "without the patentee's permission,the exploitation of its patent,that is,infringement of its patent rights,resulting in disputes,by the parties to negotiate settlement;reluctant to negotiate or negotiate failed,the patentee or interests The party concerned may bring a suit in a people's court." The legal basis of patent litigation in the criminal law category is the criminal law sub-rules.Article 216 of the crime of infringing intellectual property rights in Section 7 of Chapter 3 states that "if the circumstances are serious,the offender shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention,and concurrently or solely fined." It can be seen that patent malicious litigation is not limited to the field of civil law.This is something we should be concerned about.Non-practicing entities,that is,they do not exploit patents themselves,acquire patents by purchasing or transferring them,and a few patent owners obtain patents through R&D and submit R&D achievements to patent applications.Generally speaking,the main purpose of the subject of non-practicing entities are to make profits through litigation.The right basis of litigation is patent.Therefore,the subject of non-practicing entities will continue to purchase,transfer or submit patent applications.Expand the number of patents.Second,the patent coverage of non-practicing entities are relatively single.Since most of the non-practicing entities are engaged in malicious patent litigation in a certain country or region,they will generally apply for patent in a certain country or region,and most of them are in the United States,other countries or organizations such as the European Union.China,Japan and South Korea are next.Thirdly,the non-practicing entities generally exists indiscriminate action.In order to profit from the patent,the non-practicing entities usually brings lawsuits frequently,and the object of the lawsuit is often not fixed,as long as the enterprises using the technology in the same industry will be sued.Fourthly,the non-practicing entities are willing to reconcile or solve the problem through patent licensing.The purpose of the non-practicing entities lawsuit is for economic benefit.The reason why the non-practicing entities adopt lawsuit means is because an effective patent infringement lawsuit can arouse enough attention of theother party,so they popularize it.Litigation is the first priority,but if the other party intends to reconcile or can reach a patent licensing agreement,then these non-practicing entities are generally happy to negotiate out of court to achieve their own purposes.We have elaborated the judgment standard of the subject of non-practicing entities and the regulation of the United States against the subject of non-practicing entities in detail.Then we take the history as a lesson to look at our country's malicious lawsuit against the subject of non-practicing entities in the future and make some suggestions on the regulation of our country's current laws and regulations.On the aspect of patent law,a principled clause has been added in the latest patent law amendment,that is,the exercise of patent rights shall not hinder technological innovation,shall not engage in unfair competition and shall follow the principle of good faith.This is a clause that can deal with malicious patent litigation,but we think it is not enough,how to deal with high-risk non-practicing entities malicious litigation,we need to further regulate,for example,in the process of patent transfer,if the transferee is obviously non-practicing entities can let it submit supplementary.The material proves the purpose and cause of the patent granted,and discloses the material to facilitate the subsequent application of the principle of good faith.Secondly,in the Civil Procedure Law,China has already had Article 112 of the penalty clause for malicious collusion,but there is no penalty clause for malicious collusion,which can only be regulated by the principle of good faith.For malicious acts and judgments,the Civil Procedure Law can separate a number of laws to regulate the obvious malicious acts of litigation.At the same time,in the patent infringement litigation,if the defendant initiates the patent invalidation procedure,the court may suspend the litigation and wait for the invalidation of the patent to be adjudicated.At the same time,the judge may not suspend the direct judgment of the lawsuit in the case of obvious non-infringement or obvious invalidity of the patent right.But in practice,direct referees are only allowed to avoid infringement of patent rights.This is very disadvantageous to the defendant.If the plaintiff is willing to fight a protracted war in the case of malicious litigation by the non-practicing entities,especially when the pre-prosecution injunction is in force,the defence of the defendant in the delaying brigade is by no means merely an economic blow.This is not an afterthought recovery.So I suggest adding some cases in the civil procedure law that can not suspend the direct judgment of the lawsuit.If the judge judges that the case is a malicious lawsuit or only a malicious lawsuit,the professional examiner of the State Intellectual Property Office or the professional examiner of the Patent Reexamination Board can be introduced as the technology.Experts give preliminary professional advice on the stability of the patent and the corresponding relationship between the patent and the product.If the technical expert thinks that the stability of the patent is poor or the corresponding relationship between the patent and the product is not clear,then the plaintiff can be allowed to defend within a time limit,thus introducing the patent examiner into patent infringement litigation.It can save litigation costs,shorten the litigation cycle greatly,reduce the waste of judicial resources and provide timely legal relief to the defendant.Finally,in the aspect of anti-unfair competition law,we can also carry out some basic safeguards.The anti-unfair competition law can regulate the behavior of malicious litigation of a single non-practicing entities,and can also regulate the situation that several non-practicing entities are integrated into a coalition of non-practicing entities for malicious litigation.Because once a number of non-practicing entities become a coalition of non-practicing entities,once it brings a malicious lawsuit against a normal operation of the company,the negative impact will be inestimable,in this case,the need for anti-unfair competition law to regulate suspected monopoly and anti-improper behavior.It can be seen from this that the regulation of malicious litigation of non-practicing entities can be regulated from many laws and dimensions to achieve a comprehensive and comprehensive regulatory scheme.