Distribution Of The Burden Of Proof In Non-infringement Confirmed Litigation Of Patent

The action of the confirmation of the non-infringement emerging in recent years is onekind of the actions of the intellectual property, aiming to relieve the accused infringer andrestrain the obligee from misusing their right, such as overissuing the infringement warningletters. It provides an active defensive system to the counterparts of the patent, which isbenefit for the protection of their legal rights. On the other hand, it sets reasonable limitationon the right of patent, which is in favor of preventing and punishing the misuse of the right ofpatent. To some extent, the allocation of the burden of proof decides weather the case cansucceed and the identification of it of the both parties is the key to dispose these cases. Forlack of specific legal provisions, some scholars and researchers have vague acquaintance withthe allocation of the burden of proof in the action of the confirmation of the non-infringementof the patent, which is unfavorable for the protection of legal rights of the parties and the trialof the specific case. According to the theory of burden of proof with double meanings, thisarticle expounds on the allocation of the burden of proof of both parties in the action of theconfirmation of non-infringement of patent, based on the relevant theory of the action of theconfirmation of non-infringement of patent, burden of proof and its allocation, and the mainfactors in patent legal relation, in combination with the specific cases. Finally, the writer putsup with the suggestion to ascertain the allocation of burden of proof in the action ofconfirmation of non-infringement of patent, with the combination of the above-mentionedtheory and the review of the cases.Apart from the introduction and the conclusion, there are four parts in the article. Thefirst part is mainly about the basic situation of the case, describing its concreteinformation,the focal point of the dispute and the divergence. The second part is the analysisof the theory, expounding the relevant concepts of the confirmation action ofnon-infringement, the burden of proof and the allocation of objective burden proof,, thecomposition of the fact of the patent infringement, and the doctrine of the allocation of burdenproof therein, as well as the relevant legal provisions. The third part discusses the assumptionof burden proof of the two parties in the detailed case. The fourth part presents the suggestionon the confirmation of allocation of burden proof in the confirmation action of patentnon-infringement, combining with the theoretical research and the review of the case. Because of my limited ability to confirm the analysis and discussion of non-infringementof patent litigation is not deep enough and needs to continue to strengthen.