Confirm Non-infringement Of Intellectual Property Litigation Study

Confirming non-infringing intellectual property right (IPR) lawsuit is a new type of intellectual property litigation arising in China' s court in recent years. What has been peculiar about this kind of suit is that suspected infringer herein becomes plaintiff and IPR holder, on the contrary, is taken as defendant and, thus utterly exchanges the roles of two parties in traditional intellectual property infringement litigation. Since there is no definite law and rule to regulate this suit in our country at present, both the judicial academia and the practice feel perplexed for the disposal thereof. And among all the problems in confirming non-infringing IPR lawsuit, the following are especially troublesome. That is how to determine interest of action, as one of prerequisites of right of civil action herein, what should be considered when defining the issues such as lawsuit jurisdiction, burden of proof and counterclaim. Based on judicial practice of our country, this paper is a deep research and analysis on the issues like the essential condition of confirming non-infringing IPR lawsuit and, tries provide some references and do certain help for legislation and judicial practice.The paper consists of four parts and they are the foreword, three sections and the end thereof.The foreword introduces the background, the substance, the value and main thoughts of this topic study. In the first chapter, this paper gives its definition of confirming non-infringing IPR lawsuit, and then analyzes the origin of this kind of suit and shows the issues in the litigation practice. Afterwards, the paper explains theories on rights of action behind this suit which is the basis of further study on the prerequisites of right of civil action herein. In the second chapter, this paper proves that the suit herein should belongs to confirming suit by animadverting the "tort suit theory" at the beginning, and then put forward the "Provokationsprozess" (German)assumption based on the present theories. In the procedure, the accused infringer shall prove that, he or she has received the intellectual property infringement warning from the relevant IPR holder which makes his or her interests under severe threats. Then, the court sends off an order called "Provokationsprozess" to the IPR holder to hurry he or she up to bring suit, otherwise may put him or herself at a disadvantage. But, there are some exceptions to validity of the order. In third chapter, the paper goes on discuss several hot issues on the confirming non-infringing IPR lawsuit such as territory jurisdiction which in the author' s opinion, should be established according to three different contact factors analysis. Besides, it also brings forwards the author' s point of view on the issues like counterclaim, burden of proof and judgment and verdict.The end mainly summaries the contents of the paper and gives some questions and problems which are worth further studying on.