Case Study On Confirming Non-Infringing Intellectual Property Right Lawsuit

Intellectual property right is a"double-edged sword", both bring a reasonable return to the intelligence of workers, it may be abused as a means to suppress rivals commercial. To limit the abuse of rights and change the alleged infringers'status of passive defense,"confirming non-infringing intellectual property right lawsuit"emerge as an active and effective forms of action. Since there is no definite law and rule to regulate this suit in our country at present, both the judicial acedemia and the pratice feel perplexed for the disposal thereof.In the first chapter, this paper analyzes the origin of confirming non-infringing intellectual property right lawsuit, introduces China's earliest cases and foreign-related system settings. Then, it gives its definition of this kind of suit and analyzes the difference compared to tort lawsuit. On the basis of the existing theory, this paper analyzes the legal nature of confirming non-infringing intellectual property right lawsuit, and puts forward the"Provokationsprozess"assumption.In the subsequent chapters, the author studies range of issuses of confirming non-infringing intellectual property right lawsuit in the lawsuit trial by cases. The practise circle has reached a consensus in the conditions of admissibility, this paper focus on confirming non-infringement of trade secrets. This kind of suit should be praticed according to the territory jurisdiction rule principles of infringement dispute, this paper analyzes definition standard of"place of tortious act", especially"marketing place of products". In the trial, the defendant can countersuit. Confirming non-infringing intellectual property right lawsuit can be judged together with infringement suit. If the obligee and the accused infringer based on the same intellectual property right submit the case to different courts separately, the court placed on file in the post should transfer the case to the court filed earlier. The Premise of confirming non-infringing intellectual property right lawsuit lies in infringement deciding not started"dispute settlement procedures", This paper describes in detail the definition of"dispute settlement procedures", if infringement disputes have been referred to the administrative law enforcement agencies deal, the alleged infringer shall not raise a confirming non-infringing lawsuit. However, the administrative litigation and the confirming non-infringing lawsuit can be combined, which must be joined by the regulation of"the civil action the first and the administrative litigation the latter".The end mainly summaries the contents of the paper, elaborate the significance and value of studying confirming non-infringing intellectual property right lawsuit, and put forward some questions and problems which are worth further studying on.