Judicial governance of malicious litigation of intellectual property: from abuse of rights to the strengthening of responsibility in the beidous river (the framework of the legal integrity of the operational context)
When the defence of rights becomes a weapon, when the prosecution becomes an instrument, the judiciary must shine its sword。
In recent years, as the protection of our intellectual property rights has continued to increase, an alienated form of litigation — malicious litigation — is growing. Such actions not only desecrate the judicial authority, but also seriously erode the very foundations of the intellectual property system。
As legal practitioners, we must be conscious of the fact that malicious litigation is essentially an abuse of rights and a legal form of judicial “painting”. The typical case of malicious suits against intellectual property issued by the supreme people's court in november 2025 marks the beginning of a new phase of judicial protection of intellectual property rights, from “enhanced protection” to “prevention of abuse”。
I. The problem of the problems: the practice of corrective proceedings and the emergency of governance
Malicious litigation of intellectual property rights is by no means a simple procedural flaw, but rather a juridical cancer that seriously undermines innovative ecology. In practice, some market subjects have used the sui generis mechanisms of ipr litigation to alienate judicial proceedings into undue competitive instruments。
The damage caused by malicious actions is complex: on the one hand, it directly infringes the legitimate rights and interests of a particular relative, leading to the loss of goodwill, obstruction of operations and a sharp increase in costs; and, on the other hand, it indirectly undermines the competitive order of the market, causing a waste of judicial resources and ultimately harming the public interest。
Even more worrying is the extremely contagious nature of malicious prosecutions. Once profit is “feasible” through malicious litigation, it creates a negative demonstration effect within the industry, leading to a reverse incentive for “bad currency to expel good currency”。
In the face of this serious challenge, justice, as the last line of defence for social justice, must come up with effective governance programmes. The supreme people's court, which establishes rules of adjudication through typical cases, is a positive response to this era。
Criteria for identification: judicial construction of the four-component system
Accurate identification of malicious suits is a prerequisite for effective governance. After years of judicial practice, our courts have developed a relatively mature system of “four elements” of malicious litigation:
Lack of a rights base. The right claimed by the complainant does not exist, has lapsed or is manifestly inappropriate. For example, in the case of a new type of patent for the purpose of “target flowometer”, the plaintiff brought a tort action after the patent had been terminated for unpaid annual fees, which constituted a fundamental deficiency in the basis of the right。
Subjective knowledge. The prosecutor clearly knew or should have known that he lacked a reasonable basis for success. This element emphasizes the cognitive state of the perpetrator, which requires a combination of his or her professional background, prior assessment, evidence possession, etc。
Impairment of objectivity. The defendant suffered actual losses as a result of the proceedings, including direct economic loss, damage to goodwill and reasonable costs of defence。
Directness of causation. There is a legal causal link between the result of the damage and the act of malicious action, and the causal chain is interrupted by the absence of intervention in abnormal factors。
It is particularly important to emphasize that the principle of due diligence runs throughout the application of the four elements. In a number of cases, the supreme people's court has stated that a simple presumption of bad faith cannot be established in circumstances such as unfavourable outcomes of proceedings or withdrawal of proceedings after prosecution, and that the right of action must be properly exercised。
Iii. Presentation of practice: type analysis of corruptionals
Based on the typical cases issued by the supreme people's court, the current malicious proceedings against intellectual property rights take the following forms:
Misdemeanour of rights. The plaintiff still litigates in the event of a clear defect in the right, such as knowledge that the patent right has ceased, that the trademark right has lapsed, or that there is a major dispute over the ownership of copyright。
A trap-induced malicious suit. The rights-holders set up a pre-emptive abuse trap to induce others to commit so-called “violations” and then to prosecute them accordingly. A typical representation of this type is the right to offer technical options for the production of samples, followed by tort litigation, in the case of the “tracking” practical novelty patent。
Criminal proceedings for strategic interference. Key commercial points of competition selection are prosecuted for non-rights-based purposes such as blocking listing, undermining cooperation and affecting financing. In the case of the new and useful patent for “finished cans”, the plaintiff chose to cause trouble in the other party's listing process and to hide adverse patent evaluation reports。
Misdemeanor proceedings for abuse of power. (c) prosecuting a claim for compensation that is manifestly unreasonable when the right is obtained by improper means, knowing that the technical programme originates from another person or belongs to a known technology。
Iv. The system of responsibility: specific application of the principle of compliance
The key to the management of mala fide litigation lies in the establishment of a system of liability sufficient to deter wrongfulness and compensate for the harm done. The supreme people's court has established, through typical cases, the principle of responsibility, with full reparation at its core。
The loss scope is fully covered. The perpetrators of malicious actions should compensate the respondent for all the losses suffered, including direct losses such as legal fees, transportation, identification fees, etc., to meet the costs of the proceedings, financial occupancy losses due to measures such as preservation of property, and loss of reasonable expected benefits。
In the case of malicious actions against the carlog patent, the court not only supported the direct defence costs of the respondent, but also innovatively supported the loss of the expected benefit of its voluntary waiver of an order for avoidance of legal risk, reflecting the juridical notion of maximizing its efforts to achieve a “comparison” between the scope of compensation and the scope of the loss。
Multiple configuration of the liability modality. In addition to compensation for economic loss, the court may, depending on the circumstances of the case, hold the perpetrators of the malicious proceedings liable for the apology and the removal of the effects. The introduction of punitive damages to increase the cost of the violation may also be considered in cases of partial caution。
The full visibility of the refereeship. Through the adjudication of typical cases, a clear message was sent to society that intellectual property protection was not an instrument for undue profit, that judicial proceedings could not be abused and that litigation contrary to the principle of good faith would be severely punished by law。
V. The path to governance: synergies between judicial power and systemic thinking
Adjudication of malicious actions against intellectual property is a systemic undertaking that requires an organic combination of judicial power and pluralist governance。
Full demonstration of judicial dynamism. The court shall examine ex officio possible cases of malicious conduct, enhance guidance and clarification in the course of the proceedings and, if necessary, investigate evidence and prevent abuse of the proceedings。
Effective protection against litigation risks. Establish a robust malicious prosecution identification mechanism to close cases where malicious suspicion exists and avoid increased loss. Improve the mechanisms of procedural security and preservation remedies to provide timely protection to parties who may suffer undue harm。
(b) the formation of a network of synergistic governance. To strengthen the collaboration between the judiciary and administrative and enforcement agencies, trade associations and intellectual property services in order to create governance synergies. A credit monitoring system for “a breach of trust and a restricted location” is established through mechanisms such as information-sharing, referral of leads and joint discipline。
Active development of a litigation culture. A variety of methods, such as case publication, interpretation by judges and education on the rule of law, have led to the correct perception of litigation, the promotion of the principles of honesty and credibility and the creation of a climate of justice。
The governance effectiveness of malicious ipr litigation is directly related to the implementation of innovation-driven development strategies and the optimization of the business environment. The people's court, through rules of adjudication established in typical cases, provides clear guidance to market subjects and a reference point for lower court decisions。
In the future, as new practices and models emerge, malicious litigation may also take on new forms. Judicial practice should be incisive, responsive and timely to real needs, continuously improving the rules of adjudication and returning the judicial protection of intellectual property to its very roots — truly protecting innovation, not speculation。
As legal practitioners, we must not only fully use legal weapons to defend legitimate rights and interests, but also remain alert to the vortex of malicious litigation by ourselves or clients. Only then can a healthy, orderly and dynamic intellectual property ecosystem be built together。
