Confirming Non-infringing Intellectual Property Lawsuit Study In China

Confirming non-infringing intellectual property (IP) lawsuit is a new kind of litigation arising in China in recent years. The greatest feature of this kind of suit is that the accused infringer herein becomes plaintiff ,however, the intellectual property right (IPR) holder is taken as the defendant, which completely reverses the roles of both sides of parties in traditional infringement litigation.There is a few rules on suit for establishment of non-infringement. Although, the suit for establishment of non- infringement is included as the third cause of action in Brief of Civil Law Cases(April 1, 2008 implementation)and under Articles 108 and 111 of The Civil Procedure Law of the People's Republic of China, the people's court should accept cases meeting the requirements concerned; the following problems have drawn debate in academia and the practice. Those are how to determine the interests of suit for confirming non-infringing tort suit, as one of prerequisites of right of civil action herein, lawsuit jurisdiction, burden of proof and counterclaim, and how to make it compatible with other procedures such as administrative handling of infringement and administrative suit, and so on. Based on judicial practice of our country, this article, by analyzing the above issues, aims to provide some references for legislation and judicial practice in china.This paper consists of five Parts and they are the introduction,four sections and the conclusion thereof.Introduction: This part introduces the context of research, the significance of the research, and the domestic and international research achievement.Chapter 1: the General Overview of Confirming Non-infringing suit in the IP Field in China. The paper gives its definition of confirming non-infringing IPR lawsuit at the beginning, then revealed its atrributes. It proves that the lawsuit herein should belong to confirming suit and tort suit by animadverting the"Should not be a suit"theory, the"Tort suit"theory and the"Confirming suit"theory . In addition the confirming non-infringing IPR lawsuit should follow the basic principle of fair competition and balancing rights.Chapter 2: The Prerequisites of Right of Suit for Confirming Non-infringing Suit in IP field in China. This part gives a brief introduction of the prerequisites of right of confirming suit at first, then disserts how to determine the interests of suit, as one of prerequisites of right of civil action herein, and finally, it discusses in detail the interests of suit for confirming non-infringing suit in the territory of IP. It explores, first of all, the"Consciousness"theory, the"Negotiation"theory, the"Threat"theory, the"Negotiation and Threat"theory, the"True disputes"theory, the"strict conditions"theory, and the"Provokationsprozess"theory; moreover, it puts forward the author's idea for determining the interests of suit for confirming non-infringing suit in the territory of IP based on the above theories. Chapter 3: The Discussions on the Relevant Issues of Judicial Practice aboutNon-infringing Complaint in IP Litigation in China. It includes what should be considered when defining the issues such as jurisdiction, qualification, issue of letter of warning, burden of proof , counterclaim, joinder of Proceedings (or Claim) and adjudication.Chapter 4: The paper discusses about how to make it compatible with other procedures such as administrative handling of infringement and administrative suit.The concluding part mainly summaries the contents of the paper and puts forward some further issues.