| With the booming development of China’s intellectual property industry,the number of intellectual property disputes between enterprises is increasing day by day.Litigation as an effective means of protecting the legitimate rights and interests of the parties is widely used.However,while maintaining legitimate rights and interests through litigation,it is also important to note the phenomenon of malicious litigation of intellectual property rights through the malicious use of litigation rights.Malicious litigation perpetrators use both public and private intellectual property rights to maintain intellectual property rights in the name of litigation litigation behavior to damage the legitimate rights and interests of the other party,including substantive losses,available benefits,including the loss of goodwill and reputation damage and other non-physical losses,and impact on the social credit system,disrupting the normal order of intellectual property licensing and commercial use.Effective regulation of IPR bad faith litigation and the development of standards for adjudication are particularly important,as otherwise it will become a major obstacle to China’s IPR system and economic development.At present,there is no clear judicial system or legal provisions on malicious IPR litigation in China,and there is no consensus on the basis of the penalties to be imposed,resulting in inconsistent determination of malicious IPR litigation and different standards of adjudication.The nature of IPR malicious prosecution should belong to the tort,which can be analyzed through the composition of the elements of tort and used as the basis for judicial decision on such cases,in which the focus of controversy is mainly reflected in the identification of the three key elements of subjective malice,litigation behavior and damage results.This article examines the judicial determination of the elements of malicious prosecution of intellectual property rights and the specific content of its legal regulation based on theory and practice by sorting out relevant theories and typical cases,and discusses the specific problems in the judicial adjudication of malicious prosecution of intellectual property rights.Firstly,the problem of subjective malice lies in the strong concealment of subjective malice on the one hand,and the vague measurement of subjective intent on the other.Finally,the determination of damages should take into account non-substantive losses as a criterion for judgment and indirect commercial losses.For example,the effective existence of rights documents is a prerequisite,and the defendant’s knowledge should also be taken into account in special circumstances;the act of prosecution is a manifestation of the rightful exercise of the rights of the right holder,and the key points of adjudication should be refined,rather than simply expanding the scope of the determination of IPR malicious prosecution.The determination of subjective malice can assist in identifying the legitimacy of the conduct of litigation and the reasonableness of the scope of damages,and the conduct of litigation and damages are an important factor in determining subjective malice.The elements of infringement are complementary to each other and become an important component of malicious prosecution of intellectual property rights. |
