What are the constitutive elements of bad faith litigation in intellectual property rights?

2.Intentionally for the purpose of harming others. 3.

As a result, others have suffered. There is no legal and factual basis for filing a lawsuit.

For the determination of bad faith litigation in intellectual property rights, an adaptive interpretation of the four elements should be made on the basis of adhering to the analytical framework of the four elements of infringement liability, combined with the characteristics of intellectual property litigation.

The conditions that should be met in bad faith litigation of intellectual property rights can be summarized into three aspects: First, there is no factual basis and justifiable reason for initiating a civil lawsuit, especially if there is no basis for rights in intellectual property litigation. The second is intentional for the purpose of harming others.

Third, it caused other people to suffer losses. Among them, the lack of legal basis and factual basis for initiating litigation is the core criterion for judging malicious litigation. The illegality of malicious litigation of intellectual property rights does not lie in the initiation of the lawsuit itself, because the initiation of litigation is the basic right enjoyed by the parties, and its illegality is mainly reflected in the fact that there is no objective basis for the initiation of the lawsuit, that is, no rational litigant will consider that the lawsuit has a chance of success.

In addition, the determination of bad faith should be limited to knowing intent. The "knowing" state of the actor can be inferred from three aspects: first, the background of the actor, including the time the actor has been engaged in activities in the field, his technical position, and his status in the field; The second is the actor's behavior, such as the perpetrator fabricating evidence, or forging a confidentiality agreement for the purpose of public technology, in order to prosecute and attack the other party; The third is other factors.

If the actor indicates to the person outside the litigation that there is no factual and legal basis for the lawsuit, or will declare a patent for a technology that he knows has no novelty, and sue others for infringement.

1. Attention should be paid to distinguishing between malicious litigation and legitimate rights protection.

In accordance with the provisions of the Civil Procedure Law, a party initiates a civil lawsuit against an act suspected of infringing on his personal or property rights and interests, and applies to the court for evidence, property preservation and other measures in the course of the litigation is a procedural right granted by law. Even if the claim is not upheld by the court in the final judgment, it cannot be easily assumed that the litigation act is subjectively malicious.

Specifically, in this case, Duoleng Company had a legal basis for rights when it filed two patent infringement lawsuits with the court. Its application to the court to take evidence preservation and property preservation measures against Hengsheng Company is also an exercise of litigation rights in accordance with the law and is not improper. Subsequently, since the patent in question was declared invalid twice, it was also legal for Duoleng Company to withdraw the lawsuit to the court.

Although Duoleng's litigation against Hengsheng Company has gone through many repetitions, it is related to the change in the validity of the patent on which it claims rights. However, the validity of the invention patent involved in the case has changed several times, which is caused by the inconsistency in the judgment of the patent administrative authority and the judicial authority. The occurrence of these situations is not subject to the will of Doleng.

In addition, the type of patent involved in the case is an invention patent, which is different from the type of patent for utility model and design, and has undergone substantive examination at the time of grant, and the status of rights is relatively stable. Moreover, there is no evidence to prove that Duoleng Company knew that its patented technology was prior art at the time of applying for the invention patent or filing a patent infringement lawsuit, or that there were other obvious circumstances that might cause the patent to be ungranted or invalid. Therefore, the litigation behavior of Duoleng Company was not subjectively malicious, and should not be determined to constitute malicious litigation.

The constitutive elements of malicious litigation of intellectual property rights are: 1. The parties file a civil lawsuit without factual basis and justifiable reasons; 2. There is subjective malice, with the purpose of intentionally harming the interests of others; 3. Collusion was committed; 4. Attempting to cause others to suffer losses through litigation.

[Legal basis].

Article 112 of the Civil Procedure Law of the People's Republic of China: Where parties maliciously collude with each other in an attempt to infringe upon the lawful rights and interests of others through litigation, mediation, or other means, the people's court shall reject their request and impose a fine or detention based on the severity of the circumstances; where a crime is constituted, criminal responsibility is pursued in accordance with law. Article 113:Where persons subject to enforcement maliciously collude with others to evade performance of obligations set forth in legal documents through methods such as litigation, arbitration, or mediation, the people's courts shall give fines or detention based on the severity of the circumstances; where a crime is constituted, criminal responsibility is pursued in accordance with law.