About Infringement Of Intellectual Property Rights Confirmation Not Proceeding Research Of Several Legal Issues

Declaratory judgment of non-infringement of intellectual property, which is also called the suit under the threat of tort in the territory of intellectual property, is a relatively new type of lawsuit. However, declaratory judgment of non-infringement of intellectual property, as is not identical to the traditional types of lawsuit, has not yet been given sufficient attention in the Chinese legislation and needs to be further intensified in theory. The main contents of the essay:Chapter 1:this part analyses the present situation of legislation and case filing of declaratory judgment of non-infringement of intellectual property. Firstly, the paper introduces the situation of legislation of declaratory judgment of non-infringement of intellectual property at this stage. Secondly, the paper illustrates that the replies to the questions concerning acceptance and jurisdiction of declaratory judgment of non-infringement of intellectual property having been made the Supreme People’s Court since 2002 is one of the main reasons that the number of cases of declaratory judgment of non-infringement of intellectual is rapidly rising. Chapter 2:This part introduces the questions concerning acceptance and jurisdiction of declaratory judgment of non-infringement of intellectual property and the writer gives his opinion that suspected infringer shall have received the infringement warning letter or other substantial infringement warning from the intellectual property obligee as a condition for bringing this type of lawsuits. In the jurisdiction aspect, the determination of the jurisdiction is mainly discussed. Chapter 3:The paper illustrates the burden of proof and defense of declaratory judgment of non-infringement of intellectual property especially the manner of defense of suspected infringer, and the suggestions the burden of proof of the declaratory judgment of non-infringement of intellectual property is given. Chapter 4:How to deal with the situation that a infringement suit and a declaratory judgment non-infringement of intellectual property are filed at the same time is discussed. In the writer’s opinion, the court shall hear the complaint in combination since no issues regarding mutual absorption exists in that case. Chapter 5:How to deal with the relationship between the declaratory judgment of non-infringement of intellectual property and administrative processing and administrative suit in the territory of intellectual property is illustrated. In the writer’s opinion, the declaratory judgment of non-infringement of intellectual property is able to balance the relation of rights and obligations between equal civil subjects. Also, the view point that the declaratory judgment of non-infringement of intellectual property shall take the priority over administrative processing and administrative suit in the territory of intellectual property is presented. Chapter 6:The status of legislation and legislative improvement concerning the declaratory judgment of non-infringement action of intellectual property are discussed and the idea that enacting the <Special Intellectual Property Procedure Law of the People’s Republic of China> in which the related procedure of the declaratory judgment of non-infringement action of intellectual property shall be established is proposed. In brief, through discussion in the above questions regarding the declaratory judgment of non-infringement action of intellectual property, this essay tries to, to some extent, make contribution to Chinese juridical practice, legislation, and jurisprudence.