The Comparison Between Confirmation Judgment In China And Declartory Judgments In U.S

U.S. has and use declaratory judgments to solve intellectual property problems for several years. It has a comprehensive system and advanced knowledge in this area. Declaratory judgments have become extremely important in our current global economy as a way to resolve potential intellectual property disputes. These issues have serious economic implications for the businesses and potentially national economies involved; the purpose of these actions is to prevent abuse of patent rights while still encouraging the registration of patents.There use of confirmation judgments is currently developing in China; however, the Chinese court’s application of this legal mechanism has been clumsy and ineffective sometimes. It is not only reflects the growing contradictions and conflicts between the parties of intellectual property, but also reflects the trend of abusing of intellectual property rights to achieve advantages.It is necessary to build a completed system in China which developed we should learn the conceptions and solutions from U.S. system. This is a difficult line to tread, and China appears to be having difficulty implementing the mechanism in their current economic and political situation. Declaratory judgment has some significance in establishment our country’s legal system.In the introduction, the author, mainly by Chinese first non-infringement confirmation judgment case, "Peter Rabbit", leads to the theme and focus on the discussed issues. The author also lists some present research results which have been researching this problem.There are five parts in total. The first part of the article describes the origin and definition of non-infringement confirmation judgments in intellectual property rights and declaratory judgments. The similarities in origin build the foundation in further discussion in this article. The establishment of these two systems is to give the certain status, reduce damage to the accused infringer and prevent abuse suits of patentees.In second part, the author states the current theoretical basis and legal requirements. A declaratory judgment is the legal determination of a court as to the legal position of litigants in cases where there is doubt as to their position in law. It is a form of legally binding preventive adjudication by which a party involved in an actual or possible legal matter can ask a court to conclusively rule on and affirm the rights, duties, or obligations of one or more parties in a civil dispute. Non-infringement conformation suit is a negative confirmation suit, which proves the existence of legal relationships. Declaratory judgments in the U.S. already has a specific code of law; however, China has incomplete judicial interpretations and regulations.The third part and the fourth part are recognized around two specific aspects of non-infringement conformation judgments. The suitable standard of non-infringement confirmation suits are:1. an infringement warning or declaration issued; 2. the proof of the possible loss; 3. failure to use his or her rights. Declaratory judgments use the "reality of the dispute" as standard, which means the accused infringers have a reasonable concern and commit the tort of infringement or prepare the acts of infringement.The fourth part describes the burden of proof and in China, accordance with the Civil Procedure Law, it take the rule "who advocates, who give the proof." When the trade secrets are involved in the case, the burden of proof needs to integrate the rules of evidence and the particularity of trade secrets. U.S. ruling the burden of proof in general is the same as that in China. But when there is restrictions contract between the two parties, the burden of proof needs to be inverted.The author, in the last part, mainly gives some sound advice according to the specific content of the whole article. Non-infringement confirmation judgments need to create a complete legal system and focus on the fairness of the cases, considering the Chinese national conditions, and update and modify the system in time.