Research On Non-infringement Action Of Intellectual Property

Non-infringement action of intellectual property, which judged by courts in order to give a verdict to the existence of legal relationship of intellectual property infringement, is a type of action taken by intellectual property related interest holders for eliminating the risk and instability, which emerged from the unstable relationship between intellectual property related interest holders and intellectual property rights owners or its interested parties. This type of action was admitted by Chinese Supreme People’s Court through judgment to specific cases in2002. Though the property and jurisdiction of this type of action was confirmed by Chinese Supreme People’s Court in the judgment to several cases afterwards, the obvious differences exist between non-infringement action of intellectual property and common actions such as intellectual property action, infringement action in their properties and features. The common procedure cannot fit the special process of this action, so non-infringement action of intellectual property, recorded in <Main Points of Civil Cases> revised by Chinese Supreme People’s Court in2008, became an independent type of action in Chinese judicial practice.Non-infringement action of intellectual property was admitted in China not long ago and its theory was not familiar to Chinese legal scholars. Many disputes to the property, prosecution and procedure of this type of action exist in Chinese legal fields. Moreover, non-infringement action of intellectual property was admitted, different judicial officers adopt different legal procedures according to their own understanding to the judicial rules of non-infringement and special features, which lacks of operability and rules that confirmed by Chinese current laws and judicial interpretation. In China, the judgment to cases of non-infringement action of intellectual property is inconsistent, which puzzle the parties in their actions.According to the confirmation of non-infringement action of intellectual property and need of this type of action in China after legal practice in recent ten years, non-infringement action of intellectual property is an important part of Chinese dispute resolution system of intellectual property and a valid method in solving issues of intellectual property cases. This type of action should be studied and consummated continuously in order to display its function instead of being ignored easily. This conclusion is the purpose in writing this thesis. This one hundred and fifty thousand-words thesis will be divided into four parts as follows: Part one is "summary of non-infringement action of intellectual property", which includes statements and analysis to basic issues of non-infringement action of intellectual property. In this part, the meaning and feature of non-infringement action of intellectual property are defined by the author. Non-infringement action of intellectual property, which judged by courts in order to give a verdict to the existence of legal relationship of intellectual property infringement, is a type of action taken by intellectual property related interest holders for eliminating the risk and instability, which emerged from the unstable relationship between intellectual property related interest holders and intellectual property rights owners or its interested parties. In the points of view of intellectual property, intellectual economy and litigation interest, the thesis analyzes the legal basis and value of non-infringement action of intellectual property and points out the reasons and necessity of its being confirmed. The main issue of basis theory of non-infringement action of intellectual property is its feature, so it is necessary to define the feature of this type of action in order to construct the reasonable judicial system. The thesis defines that non-infringement action of intellectual property is a type of negative confirming action, and makes a reasonable confirmation to this conclusion after comparing the essential factors between non-infringement action of intellectual property and negative confirming actions. In the end of this part, the thesis analyze the current condition of non-infringement action of intellectual property after its being confirmed, discuss the defect and difficult position of this type of action in Chinese legislation and judiciary in order to give more details in following parts.Part two is "comparison to non-infringement action of intellectual property", which compares the Chinese system of non-infringement action of intellectual property and that of other countries, in order to find the current defect and determine the destination of this system in future. First, this part studies the declaratory judgment system in United States, whose intellectual property system is advanced. After confirming that actual controversy, the core of declaratory judgment system, is similar to the verdict of litigation interest of cases in the continental law system, the thesis will find the positive inspiration in the developing process of actual controversy in declaratory judgment system in United States. Moreover, this part will introduce many references to Chinese system of non-infringement action of intellectual property after introducing non-infringement action system in England, unreasonable threaten declaratory system and non-infringement to patents declaratory system in Hong Kong and analyzing their factor of prosecution, burden of proof and jurisdiction system. Part three is "Chinese judicial practice of non-infringement action of intellectual property", which includes the investigation and analysis of the actual judicial conditions of Chinese non-infringement action of intellectual property for strong operability of this topic and indeterminate relevance between this theory and actual practice. To avoid the frothy discussion, the author made investigation and survey about the condition of actual judicial practice of non-infringement action of intellectual property in the group of judges of several courts by having an informal discussion and doing questionnaire survey. The author summarized questionnaire survey and tried to find out the difficulty during judicial practice and important issues concerned by judges, in order to make the theory of this thesis more accuracy and reasonable. According to the conclusion of survey, many Chinese local courts gained lots of experience, which are helpful to future rules of non-infringement action of intellectual property confirmed by Chinese Supreme People’s Court, after judicial practice to cases of this type of action. Meanwhile, many problems exist in judicial practice of non-infringement action of intellectual property. First, China lacks operable and uniform legal standard in judicial practice of non-infringement action of intellectual property. Different areas, different courts and different judicial officers may adopt different legal procedures according to their own understanding to the judicial rules of non-infringement and special features, which always puzzled legal parties. Second, the theory of litigation interest is the core of studying non-infringement action of intellectual property as a type of negative confirming action and the key of resolving the disputes of the factor of prosecution. But the theory of litigation interest also has disputes in the limits of litigation interest in prosecution of non-infringement action of intellectual property, it is hard to judge whether prosecutors have litigation interest. China uses the "Double track" system in protecting intellectual property. Under this system, interest parties can assert administration remedy under administration protection system of intellectual property and judicial remedy under civil infringement system simultaneously because there is no prohibition for doing so. Though different obligations exist during the process, there may have possibility to emerge disputes in whether the infringement exists. Third, the theory of intellectual property is complex and professional, and the intellectual property law needs to protect both of interests of intellectual property rights owners and social benefits, so that the exertion of intellectual property is limited. Thus, it is difficult for court to give a verdict to the existence of infringement. All of above are difficulties in resolving cases of non-infringement action of intellectual property. Part four is "consummation of non-infringement action of intellectual property", which points out the necessity of consummating the system of non-infringement action of intellectual property by analyzing the current condition of this type of action in China. Though defect still exist, non-infringement action of intellectual property should not be ignored easily for its serious meaning of establishing right sense of intellectual property, stabilizing relationship of intellectual property, resolving issues of intellectual property, asserting the proper rights of right owners and preventing the abuse of rights. In following statements, the thesis discuss several core issues of judicial practice of non-infringement action of intellectual property, such as factor of prosecution, confirmation to interest parties, counterclaim process and binding force, in order to introduce advice and methods for consummation of non-infringement action of intellectual property in China.