The Research On The Suit For Confirmation Of Patent Non-infringing

The intellectual property infringement confirmation of the complaint, a new type of case, was produced in judicial practice in recent years. With the popularization and development of the patent system, the fact that the patent holder abuse of patent rights occur to the judicial practice frequently. However, the current Chinese legal system focuses on much more protection on patent holder, ignoring the legislative rights and interests of the infringed. For the case that the patent holder abuse of patent rights, the current Chinese law does not have any referent specific provisions of remedies on the infringed. But on July 2002, the Supreme Court made approval on the case of Suzhou LongBao Company that the intellectual property infringement confirmation of the complaint belongs to cases which the courts should accept and hear. Meanwhile, as a part of the intellectual property infringement confirmation of the complaint, the patent infringement confirmation of the complaint plays an important role in urging the patent holder to exercise his right. In fact, for the lack of systematic research and without clear regulations, the procedure is unavailable to preceding by the laws and regulations imperfection. Actually, there is a great disagreement on the matters of the nature of the patent infringement confirmation of the complaint, prosecution and the conditions of admissibility, and the burden of proof allocation in Chinese theoretical and judicial sectors. To start with, the paper is to make a research on the lawsuit legal basis of the patent infringement confirmation of the complaint on basis of its definition, property, and characteristic. According to the study on the related extraterritorial system, the author will state how to deal with such kind of cases in Chinese judicial operation, and attempt to give some suggestions to improve the system of the patent infringement confirmation of the complaint.This paper is divided into five parts addition to the introduction, as follows,The first part states the definition and characteristic of the patent infringement confirmation of the complaint, and then to analyze the significance and emphasize the necessity of filing such kind of lawsuits.The second part analyzes the lawsuit legal basis of the patent infringement confirmation of the complaint. Primarily, the paper is to shed light on the evolution of the negative confirmation of the complaint. after the properties and proofs of accepting and hearing such a case being explored.The third part talks about the extraterritorial system of the patent infringement confirmation of the complaint. Through studying the judicial precedent in civil law countries and common law countries, the paper attempts to find a rational approach to deal with such kind of litigation by comparing with the current Chinese judicial practice.The forth part discusses about the preceding of the Chinese patent infringement confirmation of the complaint of which include the research on the prosecution, condition of admissibility, jurisdiction, cause of filing a patent infringement confirmation of the complaint, burden of proof, and the cohesion problems among the administrative proceeding of patent, as a attempt to improve the judicial operation of Chinese patent infringement confirmation of the complaint.The final part tells about the improvement of Chinese patent infringement confirmation of the complaint in accordance with the development of the condition of admissibility, and some advice raised by the author, such as compulsory counterclaim, the new system(three reviews to unite as one), to provide a reference to the trial activities of Chinese patent infringement confirmation of the complaint.