It is common practice in law to combine the two. Malice and gross negligence are effectively the same. The logic goes that either the person knew and didn't care (i.e. malice) or knew but didn't care(gross negligence).
hmmm... I'm distinguishing from a third category here of "deliberately intended to infringe". That said I can see why the legal system would (and possibly should) treat them the same.
At his answer about the patent system - that is one of the most ridiculous politician style side stepping answers I've ever read. He did not answer the question put to him. I can only assume this means his answer to the question is "No but I know everyone will hate me if I say that".