A Study On Judicial Regulation Of Offensive Patent Trolls

Patent troll originated in the United States,which had a very adverse impact on the economic and social development of the United States,and expanded to Germany,Japan and South Korea and other countries with the United States as the center.In order to regulate patent troll,various countries have introduced a series of legislative and judicial measures.With the development of the world and China’s knowledge economy,more and more Chinese enterprises are harassed by patent troll.Although the current impact of patent troll on China’s economy and society is far less than that of the United States,foreign patent troll have extended their tentacles to China,and at the same time,patent troll have begun to breed in China.At present,many Chinese enterprises have been harassed by patent troll.In the year of 2018 the first case of patent extortion made the academic circle and the industry in a uproar.In order to solve this problem,the fourth amendment draft of China’s patent law has made corresponding adjustments.The judicial regulation of aggressive patent troll should also take the first step,to do a good job in advance,and take precautions in regulating aggressive patent troll.This paper points out the difference between aggressive patent troll and normal market operation entities,analyzes the harm of abusing the legal nature of patent rights to the construction of patent order and the economic development of intellectual property in China,and the three problems of regulating aggressive patent troll from the perspective of justice.On the basis of reference to the judicial regulation measures of patent troll in foreign countries,combined with the national conditions and legislative status of our country,this paper puts forward practical suggestions for judicial response to patent law.The first chapter is the aggressive patent troll and their problems in judicial regulation,which is divided into three parts.The first part is the identification of aggressive patent troll.Starting from the formation process of NPE to patent troll,it compares and analyzes the core differences between patent troll and NPE;the second part states the importance to regulate aggressive patent troll.In the last part,the author analyzes and lists three problems existing in regulating the aggressive patent troll from the perspective of justice in China.The jurisdiction of the lawsuit filed by the aggressive patent troll is unreasonable,the standard of issuing the ban of the aggressive patent troll is unclear,and there are different standards of compensation in the malicious lawsuit of the aggressive patent trollThe second chapter is the jurisdiction regulation of the aggressive patent troll to bring a lawsuit,which is divided into two parts.In the first part,the author expounds the causes of the unreasonable jurisdiction of the current aggressive patent trolls in China and the overseas experiences.In the second part,it puts forward three suggestions to improve the jurisdiction of the aggressive patent troll,through the establishment of a set of judicial identification standards and the increase of the patent claim subject’s right of defense to identify the lawsuits brought by aggressive patent troll,we can realize the different jurisdiction from the general patent infringement litigation of "concentration +exception".The third chapter is to standardize the application conditions of the aggressive patent troll ban,which is divided into three parts.The first part describes the judicial status and problems of the ban in China.The second part seeks the regulations of the United States,Germany and Japan on the issuance of the ban from abroad,among which the typical cases of e Bay in the United States are analyzed intensively.Because the United States has achieved the breakthrough of the permanent prohibition from the case of e Bay and summed up the four elements principle,and finally put forward to improve the issuance of the prohibition of aggressive patent troll in China.It is suggested to issue standards,improve the applicable conditions of prohibition,stop infringing before litigation,and actively apply patent compulsory license and patent open（of course）license.The fourth chapter is to unify the compensation standard of malicious lawsuit of aggressive patent troll,which is divided into two parts.The first part analyzes the legal and current situation of the compensation standard of aggressive patent troll in China,and seeks the experience of foreign countries.The second part puts forward three specific measures to unify the compensation standard of the malicious litigation of the aggressive patent troll in China.By improving the algorithm,the right to exercise the discretion of the judge and careful use of punitive compensation to curb aggressive patent troll.