Patent Malicious Litigation And Its Legal Regulation

As one way to protect parties’ rights,litigation is often used when their rights and interests are infringed.However,apart from protecting their rights by litigation,some use the litigation to achieve improper purposes,with malicious litigation as a typical example.In recent years,with the rapid development of patent system and the enhancement of patent protection awareness,patentees infringed often resort to the court for relief.Similarly,in the case of patent infringement disputes,in addition to the parties protecting their patent rights from infringement,the problem of using rights protection to damage the legitimate rights and interests of the opposite party is also emerging.This is a special form of malicious litigation in the patent field,and it is also one of the typical cases of abusing the right of action.However,for the problem of malicious litigation in patent,the lack of direct and specific provisions in the legislation,the constant discussion and controversy in the theoretical circle,and the different judgments in the judicial practice make this problem more serious.Therefore,it is necessary to conduct more profound researches on malicious litigation in patent on the basis of integrating relevant theoretical research and combining with judicial cases,so as the litigation in patent be better regulated.In common law,the concept of malicious litigation is directly stipulated in the current law and is clearly regarded as one type of tort.In the civil law,the current law has not made clear provisions on this,only through the relevant laws or precedents involving the principle of honest and credit or forbidding misuse of rights can we indirectly find the basis.In China,although the concept of malicious litigation is not directly stipulated in the current law,the relevant theory is defined from the perspective of tort.As a subordinate concept of malicious litigation,the concept of malicious litigation in patent should be defined from the perspective of tort.As a special manifestation of infringement in the patent field,malicious litigation in patent has both similarities and differences with the common elements of tort.In patent infringement litigation,the determination of "malice" depends on whether the litigants protect their rights properly or achieve improper purposes.On the one hand,we should follow the auxiliary principle,so as to have a proper concept of "malice" that is neither too wide or too narrow;on the other hand,we should follow the objective principle,and infer whether the parties have "malice" through the facts of the case.Based on the facts of the case,through analyzing the types of identification basis of "malice",the ultimate purpose is to prove that the parties know that there are defectsIn the basis of their rights when they file a patent infringement lawsuit.However,the determination of "malice" also includes that the party knows that the product of the opposite party is not related to the patent in essence although his right basis does not have defects.Compared with the former,the latter relies more on the comprehensive judgment on the facts of the case and the quality of the judge.In Japan,Germany,France,the main civil law countries do not directly regulate malicious litigation in patent,but indirectly seek regulatory basis from procedural law or relevant cases.In the common law countries such as the United Kingdom and the United States,the regulation on malicious litigation in patent is more direct and detailed from the substantive law to the procedural law and then to the relevant cases.Similar to the civil law countries,China has no direct regulation on malicious litigation in patent,and we can only find the basis indirectly from the relevant legislation.Therefore,we need to learn from the relevant foreign legislative experience base on the relevant domestic legislation and judicial interpretation,improving the regulation on malicious litigation in patent.