| With the continuous progress of science and economy,people’s awareness of the protection of intellectual property has strengthened.Right holders file infringement lawsuits to protect their rights and interests in accordance with the intellectual property protection system.However,intellectual property is a kind of monopoly right,so the right holders has the purpose of expanding the protection scope.They blur the boundaries of rights to obtain more benefits.If right holders employ rights protection methods that infringe on the legitimate rights and interests of others,and improperly use the intellectual property protection system to seek illegal benefits for themselves,it will run counter to the purpose of litigation rights granted to citizens by the law and constitute a malicious litigation in the field of intellectual property rights.The essence of malicious litigation of intellectual property is infringement,which refers to the fact that the perpetrator knows that there is no factual basis and/or legal basis,but due to its subjective illegal purpose,such as illegally obtaining compensation and combating competitors,therefore,he files a lawsuit on the grounds of others infringing his intellectual property rights,trying to seek illegitimate benefits for himself,and ultimately causes loss to the counterparty and undermines the stability of the society and the market.Since the first case of intellectual property malicious prosecution occurred in 2003,the number of such cases has been on the rise year by year,becoming a new type of infringement.At present,a relatively unified view has been formed in judicial practice on the criteria for determining malicious prosecution of IPR and the assumption of liability in China,but as this act has not been clearly incorporated into the legal provisions for regulation,there are still some problems Firstly,there are difficulties in determining the standard of "bad faith" and no unified conclusion can be reached so far;secondly,at the level of legal liability,there is the problem of unreasonable liability of the perpetrator.The reasons for the above problems are that the litigation itself has formal legality,so the illegal purpose of the perpetrator is often difficult to detect.And it adds the difficulty that certain litigation systems for intellectual property rights,such as prelitigation injunctions,require only formal review.However,intellectual property rights are an intangible,professional,and complex right.Judges need a combination of evidence from multiple sources to determine the “maliciousness” of the perpetrator.In addition,the economic benefit loss caused by the perpetrator of malicious intellectual property litigation is latent and indirect,so it is often difficult for the infringed party to prove its loss.Therefore,it is difficult to protect the infringed party’s legitimate rights and interests only by relying on statutory compensation to fill the loss.And also,the system of punitive damages also has some disadvantages,so it is rarely used in judicial practice.On the basis of expounding the criterion of malicious intellectual property litigation and the dilemma of defining liability.Therefore,after analyzing the causes of the problems in the criteria and liability of malicious lawsuits of intellectual property rights,further improvements can be proposed.On the level of the criteria,the meaning of malicious prosecution of intellectual property rights is the basis for proposing the improvement of the criteria;then,the criteria for determining "malicious" should be clarified from both the cognitive level and the purpose level,and that "malicious" should be interpreted as "intentional"from the perspective of purpose and systemic interpretation."The criteria for the determination of "malicious intent" are then defined from the perspective of the general principles of liability for infringement of intellectual property rights;finally,the criteria are further clarified from the legal perspective.At the level of legal liability,the necessity of the punitive damages system was argued,and it was clarified that the base of the punitive damages system should only include the actual loss of the infringer,and the reasonable payment to stop the infringement should not be included in the calculation of the base,while the multiplier of punitive damages should be based on"the impact of the infringement on the result of the right holder itself "In addition,the implementation of the punitive damages system should also take into account the appropriateness of the punishment received by the perpetrator;Finally,on the basis that the Supreme People’s Court has already issued judicial interpretations on the application of punitive damages in intellectual property cases,it is proposed that guiding cases should be issued to standardise the application of punitive damages by local courts. |
