A Study On The Distribution Of Burden Of Proof In Confirming Non - Infringement

Suit of affirmation of non-infringement of intellectual properties is an important supplement to the development of the system of intellectual properties, and plays a substantial role in balancing the interest relationship between the intellectual properties owner and the alleged infringer. With the globalization of the knowledge-based economy, more and more market entities become aware of the significance of protecting intellectual properties including patents, trademarks, business secrets, but at the meantime, abuse of intellectual properties for the purpose of attacking competitors is not rare as well. Therefore, in order to take the initiative in the litigation, prevent unpredictable further business losses, and protect their own legal rights and interests, the alleged infringers under trial are gradually starting to employ suit of affirmation of non-infringement as an effective defense.Suit of affirmation of non-infringement is a common and relatively mature system in the West. Nations of the civil law system generally include suit of affirmation of non-infringement in the category of negative suit of affirmation, while in common law nations, the common practice is for the alleged infringer to apply for a "declaratory judgment" of the court, e.g. the US statute of declaratory judgment (US Code Title28, Section2202) has detailed provisions in this regard. Although the Supreme People’s Court has specified the entertaining conditions, jurisdiction, cause of action and so on for suit of affirmation of non-infringement of intellectual properties with written replies and judicial interpretations, but due to the short history of the system of such suit in China, many issues remain to be solved, both theoretical and practical. For instance, in system design, the nature, allocation of burden of proof, relationship with suit of infringement etc. have not been established or are still in dispute and need to be improved. This thesis attempts to draw lessons with a critical attitude with an introduction to the basic rules of suit of affirmation of non-infringement and allocation of burden of proof, and reference to the theory and practice both home and abroad as well as the current legislation situation and judicial environment in China. The aim of this thesis is to provide some simple suggestions to the burden of proof allocation system in legislation and judicial practice of China with respect to suit of affirmation of non-infringement, and to promote and perfect the development of the judicial system of intellectual properties cases in China by improving the construction of allocation of burden of proof and clarification obligation rules.Apart from the introduction and the epilogue, this thesis consists of three chapters.In Chapter One, a summary is made of the basic rules of suit of affirmation of non-infringement and the allocation of burden of proof. Firstly, the concept of suit of affirmation of non-infringement is presented with an introduction to the suit of affirmation, and its nature in dispute (whether it falls into the scope of suit of tort or suit of affirmation) is contemplated; the importance of this system is further elaborated by discussing the "affirmation interests" in the preconditions of suit of affirmation of non-infringement. Then, with an introduction to the representative theories in both the civil law system and the common law system, which are selected from the current numerous theories regarding allocation of burden of proof, the merits worthy of learning for China’s burden of proof allocation system are concluded.In Chapter Two, the construction of China’s burden of proof allocation system is pointed out with an introduction to the domestic and foreign theories and practice of burden of proof allocation in suit of affirmation of non-infringement.In Chapter Three, the significance of the burden of proof allocation system to the suit of affirmation of non-infringement is argued, and then the writer’s suggestions and opinions of legislation on possible improvements of the burden of proof allocation system in suit of affirmation of non-infringement are raised.