Identification And Legal Regulation Of Malicious Patent Litigation

The inherent shortcomings of the patent granting system and the lack of a clear response to the problem of malicious patent litigation in legislation have led to the emergence of actors in real life applying for patents maliciously or using problem patents,and using legal litigation methods to achieve patents for the purpose of seeking illegal benefits.The significant increase in patent malicious litigation cases and the increasingly prominent social harm have triggered in-depth discussions in the academic and practical circles,but there are divergent opinions on the research of patent malicious litigation,and no clear consensus has been reached.At present,there are still controversies and ambiguities regarding the identification standards of malicious patent litigation,the definition of subjective malice,and the design of legal regulations in the academic world.Therefore,it is urgent to clarify these issues theoretically.First of all,as a means of abuse of rights,patent malicious litigation can be determined by referring to the four elements of general civil infringement and combining its own characteristics to make flexible applications.Secondly,the subjective state of the actor in malicious litigation can be considered from the factors of cognition and will.The actor knows that there is no legal basis or reasonable cause for filing a lawsuit,and knows that it will harm the lawful rights and interests of others,but actively seeks to damage the consequences,so it should be limit its subjective aspect to direct intention.At the same time,the definition of subjective malice should follow objective standards and distinguish it from legitimate rights protection.In judicial practice,the stability of the basis of rights,the relevant background of the actor in the field of patent technology,and the relevant actions of the actor in litigation should all be considered as considerations for the definition of "malicious".In terms of the elements of conduct,different from the illegal elements of general civil infringements,the filing of malicious lawsuits for patents simply has no legitimate reason and legal basis.Finally,with regard to the design of legal regulations,we can learn from the useful experience of the United States and Japan to improve our country’s path choice for this issue.In view of the great social harm of malicious patent litigation,consideration should be given to perfecting and detailing the litigation system for confirming non-infringement of patent rights.Increasing the cost of violations is also an effective path.A punitive compensation mechanism for malicious patent litigation and a counter-compensation system for malicious patent litigation can be established to deter malicious litigants.