1, the basic concepts and characteristics of malicious litigation of intellectual property rights
Malicious litigation of intellectual property rights is a new type of litigation. When the Supreme People's Court revised the Provisions on the Cause of Action of Civil Cases on 20 1 1, it officially included "the dispute over liability for damages caused by malicious intellectual property litigation" as one of the causes of action. There are no special provisions on malicious litigation of intellectual property rights in the current intellectual property law. In nature, the essence of malicious litigation is the abuse of litigation right.
The concept of malicious litigation of intellectual property rights can be defined as: the behavior that the actor initiates and implements civil litigation of intellectual property rights due to his own fault without any legal and reasonable basis, which causes property and personal damage to others, or the behavior that causes damage to others through litigation procedures for some illegal purpose, including civil malicious litigation of intellectual property rights and litigation procedures for abuse of intellectual property rights. The characteristics of the legal system of intellectual property rights make the malicious litigation of intellectual property rights often very concealed, which is mainly manifested in three aspects: first, it is very concealed because of careful planning before filing a lawsuit; Second, due to the intangible and exclusive characteristics of intellectual property rights, it is difficult for judges to judge whether the plaintiff, as the right holder, is defending his own interests or malicious litigation; Third, some special systems (trademark registration process and fees) in intellectual property litigation, such as pre-litigation injunction system, are difficult to fully understand the true situation of the case because they are only preliminary examinations, and are easy to become a means for the parties to conduct malicious litigation.
2. Elements of malicious litigation of intellectual property rights
On the basis of adhering to the analysis framework of four elements of tort liability, combined with the characteristics of intellectual property litigation, this paper makes an adaptive explanation of the determination of malicious litigation of intellectual property rights.
The conditions that a malicious lawsuit against intellectual property rights should meet can be summarized as three: First, there is no factual basis and justifiable reasons to file a civil lawsuit, especially there is no right basis in an intellectual property lawsuit. The second is to intentionally hurt others. The third is that others have suffered. Among them, the lack of legal and factual basis for filing a lawsuit is the core criterion for judging malicious litigation. The illegality of malicious litigation of intellectual property rights does not lie in bringing a lawsuit itself, because bringing a lawsuit is the basic right enjoyed by the parties, and its illegality is mainly reflected in the fact that there is no objective basis for bringing a lawsuit, that is, irrational litigants will think that the lawsuit has a chance of winning. In addition, the determination of malice should be limited to knowing intention. We can infer the actor's "knowing" state from three aspects: first, the actor's background, including the actor's time and technical status in this field, and his position in this field; Second, the behavior of the actor, such as the actor forging evidence, or forging the confidentiality agreement of public technology, in order to sue and attack the other party; The third is other factors. If the actor shows others outside the lawsuit that his lawsuit has no factual legal basis, or declares a patent for a technology that he knows is not novel, he will sue others for infringement.
3. Pay attention to distinguish between malicious litigation and legal rights protection.
According to the provisions of the Civil Procedure Law, it is the legal right of the parties to file a civil lawsuit against acts suspected of infringing their personal and property rights, and to apply to the court for taking measures such as evidence and property preservation during the lawsuit. Even if his claim is not supported by the court in the final judgment, it cannot be easily determined that his litigation behavior is subjectively malicious.
Specific to this case, Duoling Company filed a patent infringement lawsuit with the court twice, both of which were based on legal rights. Its application to the court for evidence preservation and property preservation measures against Hengsheng Company is also an exercise of litigation rights according to law, and there is nothing improper. Later, because the patent involved was declared invalid twice, it was legal for Duoling Company to withdraw the lawsuit from the court. Although Duoling Company's lawsuit against Hengsheng Company has been repeated many times, it is all related to the change of the patent effect on which it claims its rights. However, the effectiveness of the invention patents involved has changed many times, which is caused by the inconsistency between the patent management organ and the judicial organ. The occurrence of these situations does not depend on the will of the multi-edge company. In addition, the types of patents involved are invention patents, which are different from those of utility models and designs. They have been substantially examined at the time of authorization, and their rights are relatively stable. And there is no evidence to prove that Duoling Company knows that its patented technology belongs to the existing technology when applying for a patent for invention or bringing a patent infringement lawsuit, or that there are other obvious circumstances that may lead to the patent being unable to be authorized or invalid. Therefore, the litigation behavior of Duoling Company is not malicious subjectively and should not be considered as malicious litigation.
The above three aspects are all related knowledge of malicious litigation of intellectual property rights. I hope you can read the above carefully.