Intellectual Property To Confirm The Non-infringement Lawsuit

The declaratory judgment of non-infringement is a new style lawsuit in the intellectual property right field. In such lawsuits, the suspect of infringement becomes the plaintiff, while the intellectual property right owner becomes the defendant, which changes the tradition that the plaintiff usually is the right owner in the procedure law theory research and trial practice. The declaratory disputes of non-infringement of the intellectual property right is recognized officially by the Supreme People's Court as the third cause of action, the local courts have the unified understanding of accepting such lawsuits, however, our current civil law and the single IP Law have made no specific provisions for this kind of lawsuits, both the judicial practice and theory horizon feel confused about how to deal with this kind of proceedings. So it is necessary to have deep theoretical research on it. This paper attempts to conduct such proceedings a more comprehensive analysis in order to provide a reference for our country's legislation and jurisdiction.Except for the introduction and conclusion, this thesis is divided into three main sections.In the first chapter, the author has an overview of the declaratory judgment of non-infringement of the intellectual property right. First, the author introduces its concept, distinguishes the difference between it and the infringement claims, and analyzes its characteristics.Then the author analyzes its emerging background and reasons. Finally, the author has an extension of the declaratory judgment of non-infringement of the intellectual property right, namely has a simple analyze of the declaratory judgment of non-infringement of the commercial secret.In the second chapter, the author conducts a more in-depth theoretical analysis of the declaratory judgment of non-infringement of the intellectual property right. First, the author has a brief introduction of the interests of the lawsuit, and analyzes the interests of the declaratory judgment of non-infringement of the intellectual property right. Based on the analyzing of the main points of the domestic scholars, the author bring out that the declaratory judgment of non-infringement of the intellectual property right belongs to the negative declaratory judgment in the Civil jurisprudence, and it is not contradictory with which he declaratory judgment of non-infringement of the intellectual property right belongs to Infringement claims, Both can be compatible.In the third chapter, the author mainly discusses the system construction of the declaratory judgment of non-infringement of the intellectual property right. First, the author analyzes the accepting range and condition of this kind of proceeding, and put forward the opinion of the level and district jurisdiction of such proceedings. In addition, the author has a brief analysis of the counterclaim and merger trail, judgment and res judicata and shows my opinions.