Study On The Risk Representation System Of Lawyers In Patent Litigation

In recent years,the number of patent disputes has proliferated and patent infringement is a common phenomenon.Small and micro enterprises,which are constrained by factors such as professional legal talents and funding for the protection of their rights,are facing difficulties in defending their rights due to the high cost of litigation.The system of risk representation by lawyers is often used in foreign countries to solve the problem of difficulties in defending the rights of small and micro enterprises,and has been very effective in defending the rights of small and micro enterprises.It is worth studying and exploring whether we can use the risk representation system to help small and micro enterprises in China to solve the problem of difficulties in defending their patent rights.Under the risk representation fee system,small and micro enterprises lacking resources do not have to pay the attorney’s fees in advance,but use the financial benefits that may be obtained in litigation to attract patent attorneys to help them defend their patent rights,which to a certain extent reduces the litigation costs of small and micro enterprises at the early stage of defending their rights and protects the realisation of the rights of the disadvantaged small and micro enterprises.However,since the introduction of the lawyer risk agency system in China,for a long time only in a large amount of personal injury compensation,debt recovery,economic disputes and other cases,involving the use of patent litigation case is relatively small.Based on this,the research problem of this paper is to explore the operability of the risk representation system for lawyers in patent litigation,in the hope of helping small and micro enterprises from disadvantaged groups to defend their patent rights and protect their legitimate rights and interests through the risk representation method at an early stage.At the same time,there is a lack of research on the risk representation system of lawyers in patent litigation in the academic field,therefore,the research area of this paper is relatively new,which is also the main innovation of this paper.In this paper,firstly,the literature induction method is applied,through collecting and organising the research results on the risk representation system of lawyers at home and abroad,the attitudes of different countries towards the risk representation system of lawyers,the nature of risk representation contracts,the scope of applicable cases,the proportion of successful remuneration,the scope and calculation basis of risk representation fees of lawyers,and the provisions of the dispute settlement mechanism of risk representation fees are summarised.Secondly,the empirical research method was applied to analyse the shortcomings and defects of the application of risk representation in patent litigation in China,based on the basic theory of the risk representation system for lawyers and combined with the series of cases of judicial practice in China.Finally,using the comparative analysis method,further through the examination of the application of the risk representation system for lawyers in patent litigation in the United States,the United Kingdom and other overseas countries,the desirability of the application of the risk representation system for lawyers in patent litigation in China was explored,and relevant countermeasures and suggestions for improving the application of the risk representation system for lawyers in patent litigation in China were put forward,and the following conclusions were reached.It is suggested that in defining the scope of cases to which patent risk representation applies,a combination of authoritative and prohibitive norms should be adopted to allow the application of risk representation in patent non-litigation and administrative litigation cases;the differential fee proportion limitation provisions of 38.6%,18%,15%,12% and 9% in decreasing order should be implemented in conjunction with the amount of compensation awarded by the court;the National Lawyers Association may,by formulating a standard risk representation text In order to protect the legitimate rights and interests of patent attorneys,the scope of attorney’s risk representation fees in patent litigation should be clarified to exclude basic case handling costs;the supervision of risk representation by patent law firms and administrative departments should be strengthened,and a mechanism should be established to disclose the misconduct of risk representation attorneys in the patent field,and patent attorneys and law firms should be regularly or irregularly disclosed for violating professional ethics and business discipline.professional ethics and business discipline,and promote the integrity and self-discipline of risk-agent patent attorneys;resolve the issue of disputes over risk-agent fees,and suggest that small and micro enterprises and patent attorneys should give preference to settlement or mediation to deal with disputes over risk-agent fees,and if no settlement or mediation agreement can be reached,small and micro enterprises and patent attorneys should be encouraged to choose arbitration.In the future,a committee can be set up within the Bar Association to resolve disputes over risk representation fees,which is specifically responsible for investigating and handling cases concerning disputes over risk representation fees between small and micro enterprises and patent attorneys.