Bad faith litigation of intellectual property as a violation of China’s anti-monopoly law: How should the current approach be improved?

Abstract

ABSTRACT Despite that access to justice is a universally recognized human right, comparative antitrust experience from both sides of the Atlantic demonstrates that bad faith litigation of intellectual property may constitute the abuse of dominance under the competition law. There has been an anti-monopoly case in China where bad faith litigation of intellectual property raised competition concerns, yet the Chinese anti-monopoly authority does not have sufficient experience in addressing these concerns, leaving some problems to be solved. Arguably, the Chinese authority neither provided a clear test for the assessment of bad faith litigation of intellectual property nor considered the interest balance in the case. This paper critically examines the US and EU approaches to analysing the bad faith litigation of intellectual property under antitrust law, and argues they in nature share a similar approach. In this regard, by learning from comparative experience, this paper suggests that China should establish an antitrust counterclaim in an infringement lawsuit of intellectual property and adopt a clear-up test for the bad faith litigation of intellectual property under the anti-monopoly law. Additionally, China should specify two specific circumstances: the first is related to a circumstance where the intellectual property holder has known that it was not entitled to any kind of legal intellectual property rights, and the second is related to another circumstance where the intellectual property in question becomes a standard.