| Bad faith patent litigation refers to a lawsuit knowingly brought by an actor upon an unfounded claim even without legal basis,which is indeed an infringement act.The purpose of a patent litigation in bad faith is to damage the interests of a competitor and thus get illegitimate benefits by litigation.Bad faith patent litigation has caused serious damage to the patent system,litigation system and competition order.Regulation of patent litigations in bad faith is the necessity to protect the legitimate rights and interests of the parties and safeguard judicial justice,as well as the requirement to promote the construction of an innovation-oriented country and encourage the development of its innovative enterprises.However,China has now no unified identification standard for bad faith in a patent litigation,and its presenting provisions for regulating bad faith patent litigation are relatively too principled and generalized to be applied in practice,which requires urgent changes to relevant aspects.Identification and legal regulation of patent litigations in bad faith are under discussion in current judicial practice and theoretical research.The way to accurately identify bad faith and deal with the relationship between protecting reasonable rights and cracking down on bad faith litigations is always a difficult point.On identification,the most important thing is to specify the criteria for identifying bad faith patent litigations.And bad faith,through the summary of judicial practice,could be identified from three aspects,namely,whether the actor knows that the lawsuit lacks factual or legal basis,whether the actor has taken any action against honesty and credibility in the lawsuit,and whether the action is made for an illegal purpose.These considerations,however,are not enough to help identify bad faith.In addition,the principle of fault-based liability should be supplemented by the principle of fault presumption to together identify the bad faith in some complicated patent litigations.Meanwhile,in order to maintain the balance between the protection of litigant rights and the fight against bad faith patent litigations,the principle of modesty in criminal law should also be adopted in the determination of bad faith patent litigations,and the knowingly performed action of the actor for unfounded litigation should be carefully taken into consideration.The action of the initiator of a lawsuit cannot be deemed bad faith just due to additional purpose other than litigation,and nor can the action of non-practicing entities be presumed.After accurate identification,regulatory system should be adjusted by procedural law and substantive law in prevention,relief and sanctions.On prevention,we should improve the patent examination system,reduce the issuance of questionable patents at the source,and eliminates the loopholes that breed malicious patent litigation.The judicial authority should prudently treat the withdrawal application in the patent infringement lawsuit.Relief to the infringed is mainly provided through strict investigation of the pre-suit injunction,improvement of confirmation of non-infringement lawsuit,increasing the infringement difficulty of a patent litigation,and easier operation for seeking relief to the infringed.Sanctions are mainly implemented by increasing the legal liability for bad faith patent litigation.Specifically,the anti-compensation system and punitive compensation system can be applied to elevate the cost of bad faith patent litigation.On this basis,credit supervision system can be used to urge enterprises to conduct honest management.Non-integrity behaviors of an enterprise should be recorded in the credit archives and meanwhile publicized.And the legal representative of the enterprise shall be restricted from high-end consumption to urge the enterprise to abide by the principle of good faith in the litigation.Beyond that,it is possible to regulate bad faith patent litigations by issuing guiding cases on these litigations,unifying the sanction standard,and improving the quality of judges. |
