In the 2011 amended “Regulations on Civil Cases”, the fourteenth item “disputes over intellectual property rights and infringement” added a third-tier cause of action “disputes over damages due to IPR malicious lawsuits”. Although there is no express provision on the concept of IPR malicious lawsuit, there is a general consensus in judicial practice that malicious lawsuit usually refers to the intentional filing of a lawfully and factually unfounded lawsuit for the purpose of obtaining illegal or improper benefits, and causing the counter party to suffer losses in the lawsuit.
From the nature, an IPR malicious lawsuit is a general civil tort. Its elements include:
1. infringement, that is, the act of initiating an IPR lawsuit;
2. damage, that is, the litigation caused the actual damage to the counter party;
3. causal relationship, that is, there is causal relationship between the act of initiating the lawsuit and the damage suffered by the counter party;
4.subjective malice, that is, the party initiating the lawsuit is subjectively malicious.