Identification And Regulation Of Patent Malicious Litigation

On June 5,2008,the State Council issued “the outline of national intellectual property strategy”,which put forward higher requirements in the judicial protection of intellectual property.After the "Yuan Lizhong case",which is called "the first case of patent malicious litigation",patent malicious litigation has aroused widespread concern in the judicial practice and theoretical circles in China.This paper focus on reviewing the relevant laws and regulations at home and abroad,summarizing the academic views on patent malicious litigation,conducting empirical analysis on all patent malicious litigation cases in 2019 and classic patent malicious litigation cases over the years,analyzing the causes of patent malicious litigation,and discussing how to identify and regulate patent malicious litigation.The first part introduces the theory and judicial status of patent malicious litigation,mainly divided into three parts: legal norms,academic views and judicial status.The unit of judicial status focus on empirical analysis.Firstly,it analyzes the cases of patent malicious litigation in 2019 extensively,in order to understand the performance of patent malicious litigation in practice.Secondly,it analyzes two typical cases in detail,including the case,the judgment viewpoint and the academic point of view.Finally,from 10 representative cases,it abstracts the viewpoint of malicious patent litigation in China's judicial practice.The second part explores causes of patent malicious litigation.The systems mentioned in this chapter do not lead to patent malicious litigation,directly.But loopholes of the systems mentioned give the plaintiffs opportunities to file patent malicious litigation.The third part discusses how to identify patent malicious litigation.First of all,it expounds the concept,elements and characteristics of patent malicious litigation.Patent malicious litigation means that the perpetrator,knowing that the other party does not establish patent infringement,sues and conducts relevant litigation.There are two elements of patent malicious litigation,"intention" and "illegal act ".Patent malicious litigation has the characteristics of strong concealment,many fronts,long periods.Patent malicious litigation costs plaintiffs a little but costs defendants a lot.Secondly,it puts forward the idea of identifying patent malicious litigation.The patentee should follow the basic principles of civil law,or else he or she may be suspected of patent malicious litigation.When identify and regulate patent malicious litigation,judges should follow the principle of "balance of interests".Finally,"malice" can be inferred from typed performance.Combined with the empirical analysis,we can conclude that there are two main types of patent malicious litigation,one is the defect of the right basis,the other is the malicious litigation strategy.If the plaintiff of patent infringement litigation has these two kinds of performance,it can be presumed that he has "malice".The fourth part discusses how to regulate patent malicious litigation.Due to the three characteristics of patent malicious litigation mentioned above,when regulating patent malicious litigation,we should take actions "before","during" and "after" the litigation,so that plaintiffs' improper purposes cannot be achieved.In conclusion,Patent malicious litigation means that the perpetrator,knowing that the other party does not establish patent infringement,sues and conducts relevant litigation.The difficulty of identifying patent malicious litigation lies in identifying ‘malice'.If the plaintiff of patent infringement litigation has specific performance,it can be presumed that he or she has "malice".To fill the loopholes of patent authorization procedure,to modify the measures of pre litigation injunction,to introduce the inequitable conduct defense in patent litigation,and to let the plaintiff of patent malicious litigation bear the liability of counterclaim,can effectively regulate patent malicious litigation.