Immaterialgüter- und Wettbewerbsrecht

When a Shield Becomes a Sword: Regulating Strategic Patent Infringement Litigation in the Context of Competition

This ongoing PhD project aims to identify and analyse the strategic patent infringement litigation practices with potential anticompetitive effects and propose a competition-oriented mechanism to regulate these behaviours.

Letzte Änderung: 14.09.16

The increasing strategic use of patent infringement litigation, whether through practicing entities or non-practicing entities, has posed and is posing great challenges to the sound regulation of certain market behaviours to maintain free market competition. Whilst some jurisdictions with certain characteristics of patent law are said particularly susceptible to these strategic behaviours, recent years have witnessed a spread of this problem from one jurisdiction to another. In addition, new forms of strategically using patent infringement litigation mechanism have also emerged, which complicates the task of regulation. While many of these practices do not exactly fall into the realm of antitrust regulation, there also lacks effective mechanism in current patent law to deal with this issue. This PhD project focuses specially on the problems arising from the strategic use of patent infringement litigation mechanism and endeavours to address this issue based on the argument that promotion of (dynamic) competition is an inherent task of modern patent law.
The whole thesis is divided into three parts. Part one endeavours to complete the mission by investigating the different forms of strategic patent infringement litigation, summarizing their common characteristics and exposing their problems. As market competition has its intrinsic value to the patent regime as a regulatory tool to regulate innovative activities in the market, it is imperative to emphasize on the pro-competition nature of patent law and use it as an underlying principle to propose the specific mechanism targeting at strategic use of patent infringement litigation. Part two attempts to achieve this goal by providing a founded argument for the immanent pro-competition thesis of modern patent law and explains why it is needed to focus on competition in the face of patent litigation problem. Following this logic, part three of this thesis strives to propose a competition-oriented mechanism to regulate those litigation practices on the basis of providing a sound definition of strategic patent infringement litigation and evaluation of relevant remedies in selected jurisdictions.



Jinheng Feng


Prof. Dr. William Van Caenegem