Confirm Non-infringement Lawsuit

Affirmation of no tort of intellectual property rights makes up and perfects to the legal protection system of intellectual property rights. Affirmation of no tort belongs to a negative affirmation tort in the nature of nomology, which is a lawsuit when the obligor of intellectual property rights confront a warning and threat from the obligee of the knowledge property rights, and in the condition of obligee being slack to appeal a lawsuit, the obligor actively appeal to the court to recognize his behavior does not infringe the obligee's rights, so to eliminate the unstable rights of obligor and regress to a normal operation behavior. There are inevitable rationalities in the existence of the affirmation of no tort. The related regulations in the《General Principles of Civil Law》,《The Code of Civil Procedure》and the Trips Agreement, and some related judicial interpretations of the supreme people's court all provide legal basis to the Affirmation of no tort. The affirmation of no tort can effectively regulate intellectual property rights holders to exercise their rights according to the law, prevent abuse of rights, safeguard fair competition, and provide necessary legal relief means for the people charged with tort. The affirmation of no tort should follow the principle of fair competition and balancing rights, to make sure the obligee and obligor of the intellectual property rights can get maximum protection of the law, and balance all the interests in the right conflicts. The admissibility of affirmation of no tort should be in line with the admissibility conditions of general civil disputes set in the code of civil law. If the plaintiff and the case have a direct stake, there must be filed with some interests when the affirmation of no tort is instituted, and have the premise of existence of actual or indeed disputes. According to the general rule principles of infringement dispute, the affirmation of no tort is dominated by the people's courts in the place of defendant's home or the infringement occurrence, and should share the burden of proof according to the code of civil law. The facts based on the request litigation put forward by the parties or the opposite have the responsibility to provide evidence to prove that. The defendant can countersuit in the affirmation of no tort which can be judged together with infringement suit. In the practical applications, the affirmation of no tort and the administrative litigation can be combined, which must be joined by the regulation of "the civil action the first and the administrative litigation the latter". The law system in China should use the affirmation of tort of Civil Law and the declaration of judgment of Common Law for reference, and gradually prefect the law system of the code of civil law and intellectual property right law in civil legislation, to provide a legal basis for judicial practice.