Determination of

The abuse of rights in patent infringement litigation refers to that the litigants of patent infringement litigation bring a lawsuit knowing that they do not have the right of action, or maliciously exercising a specific right in litigation for the purpose of infringing upon the lawful rights and interests of another person.    

The core of the patent law is to protect inventions and encourage the progress and development of science and technology, but the patent system is also a double-edged sword. The patent system should not only protect patents, encourage technological progress, promote scientific and technological innovation, and protect the legitimate rights and interests of the patentee, but also prevent and avoid the abuse of patent rights as a means of harming the legitimate rights and interests of others.

Patent malicious litigation is a kind of abuse of right, more specifically, the abuse of litigation right. Generally, it refers to the act of deliberately causing others to suffer damage, and filing a civil lawsuit in the absence of substantive rights or without justified grounds and factual basis, so that the counterpart suffers losses in the lawsuit. Usually, malicious lawsuits are more often filed not for the case itself but the use of malicious litigation to achieve illegal purposes other than litigation, and cause the defendant corresponding damage consequences, so it is a kind of tort with strong concealment.

Because patent malicious litigation is essentially an abuse of substantive or procedural rights, if there is no regulation on malicious patent litigation, precious judicial resources will not only become a tool for improper competition of the patentee of "junk patent", but also seriously impact and damage the judicial authority and destroy the order value of law. To this end, the Supreme Court in 2011 treated "malicious application for intellectual property litigation liability dispute" as one of the civil cases, and that is to encourage the victims of malicious patent litigation through litigation to increase the cost of malicious litigants to stop malicious patent litigation, in order to maintain the judicial authority, reduce the waste of judicial resources, at the same time establish a good patent order and prevent patent alienation.

Although there are no legal provisions on the concept, constituent elements and legal consequences of malicious patent litigation in China, relevant legislation can still play a regulatory role.  

Provisions relating to patent bad faith include:

  1. Article 51 of the Constitution reads: "Citizens of the People's Republic of China, in exercising their freedoms and rights, may not impair the interests of the State, society or the collective or the lawful freedoms and rights of other citizens."

2. Article 13 of Civil Procedure Law reads: "Civil proceedings shall follow the principle of good faith." Article 49: "The parties must exercise their litigation rights in accordance with the law, observe the order of the proceedings, and perform legally effective judgments, orders and conciliation statements."  

3.Article 1165 of the Civil Code reads: "If an actor infringes upon the civil rights and interests of others through fault and causes damage, he shall bear tort liability.

  4.Article 47 of the Patent Law states: "Compensation shall be made for losses caused to others by the malice of the patentee". In addition, in view of the malicious action of the perpetrator, the victim can bring an invalidation procedure to the administrative organ, or challenge the rights of the perpetrator in the tort lawsuit.

Since China's administrative organs only conduct formal examination of applications for utility model patents and design patents, not substantive examination, even if the actor's patent right does not meet the authorization conditions in essence, he can still obtain authorization through formal examination, thus owning formal legal intellectual property rights. This kind of formal legal intellectual property right has become a tool for the actor to launch malicious lawsuits and compete with others.

In the malicious lawsuit of patent infringement, the litigants cover up the truth of the patent in question with formal patent, maliciously use false patent and invalid patent to prevent other similar operators from competing. In such cases, the focus of litigation is not only numerous, but also has a strong professional technology, and the identification of tort needs to be proficient in multiple fields of knowledge. Therefore, in patent infringement cases, it is difficult to directly determine whether the plaintiff patentee maintains its own legitimate rights and interests through litigation or maliciously infringes on the rights and interests of others through litigation without substantial examination.  

The "malice" of malicious action is obviously a subjective fault, that is, there is intent and subjective mentality with blame, so malicious action is a kind of fault behavior, taking the actor's fault as the constitutive element of liability. If the Supreme People's Court determines that a specific action is an intellectual property lawsuit initiated in bad faith, it shall at least satisfy the following constituent elements:  1.A party has made or threatened to make a claim by way of an intellectual property litigation; 2.The party making the request has subjective bad faith; 3.Having actual damage consequences;4.There is a causal relationship between the action of the requesting party bringing an intellectual property lawsuit and the damage consequence.  

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