Study On The Action Of Non-infringement Of Intellectual Property

The action of non-infringement of intellectual property as a part of civil litigation intellectual property plays a role in the process in the reasonable exercise of intellectual property. In China, The action of non-infringement of intellectual property is a new type of litigation. The Supreme People's Court made a number of lawsuits to address those challenges in the judicial practice. In China,"the non-infringement declaration"as the action's condition of acceptance reflects the importance of the type of litigation. However, because our country there is no legislation of the action of non-infringement of intellectual property, the courts adopt different standards to handle the action. That directly affects functions of action against the abuse of intellectual property. In this paper, the author adopts main method of comparative through the legal system on foreign-related analysis combining with our country's actual situation and puts forward to refine the litigation system in China's legislative proposals.The article is mainly composed of four parts besides index and epilogue:The first part elaborates the concept and the value of the action of non-infringement of intellectual property. It firstly analyzes and summarizes the action's connotation and denotation and determines the action's range. Secondly, it analyses the value of the litigation in China, namely, to prevent the abuse of intellectual property, to achieve fair competition, and to maintain normal economic order.The second part analyzes basic theory in the action of non-infringement of intellectual property, including the essence of the action and the interest of the action. This section elaborates different point of view, based on some of the views presented in this paper, namely, the action is action for declaratory judgment. The interest of the action is the uncertain legal status between the plaintiff and the defendant affected the plaintiff's business, so the plaintiff has to seek judicial relief. There is the need for judicial confirmation.The third part introduces the evolution of the action in common law and in civil law systems. This section introduces the provisions of Two Schools of the system and analyzes characteristics and common ground of Two Schools of the system's provisions. Our country can learn experience from the legislation. The fourth part researches and analyzes the existing issues in the action of non-infringement of intellectual property in China to make a number of sound recommendations. In this part, the author uses the case combining with theoretical analysis to analyze the action's conditions of acceptance, the jurisdiction of the courts and the infringement action and action for unfair competition, pointing out the existence of which some of the problems. On this basis, the author proposes a number of sound recommendations, including should appropriate restrictions on the conditions of admissibility of proceedings, in accordance with the provisions of"Civil Procedure Law"to determine the jurisdiction, and the action of non-infringement of intellectual property and the action of infringement of intellectual property should be heard by the same court and should distinguish action for unfair competition.This paper argues that the action of non-infringement of intellectual property in China's intellectual property protection and the maintenance of social and public interests plays a balancing role, but it is necessary to render appropriate restrictions on the action of non-infringement of intellectual property for the prevention of abuse. The article makes the analysis on the action of non-infringement of intellectual property and put forward some suggestions to the existing issues, this is what the article contributes.Due to limited capacity, the understanding of the real fact of the action is not so profound, of which the improvement is expected.