Research On The Confirmation Of Non-infringement Of Intellectual Property

Intellectual property is the legal system for the protection of human intelligence, the judicial protection is a powerful and important way to protect intellectual property, and intellectual property trial is an important part of judicial work. From the beginning of creation, intellectual property system has concomitant with monopoly, but someone, who has patents, trademarks or copyrights, does not necessarily have absolute monopoly, still needs to subject to certain restrictions. When someone abuses his rights, how could the others protect themselves and how to obtain relief, there is a few example of intellectual property litigation in practice in our country. Confirmation of non-infringement of Intellectual property as a part of intellectual property civil lawsuit, it plays a vital role in reasonable apply of intellectual property. At present, our country has already taken "confirmation of non-infringement" as a reason of accepting cases, this reflects the attention for the lawsuit type. But because there is no legislation regulation about confirmation of non-infringement of intellectual property in our country, we will still meet a lot of problems in the lawsuit practice. Through introducing relevant foreign legal system of intellectual property, and combining the actual situation of non-infringement action, this article analyzes the nature of non-infringement of intellectual property, rationality, the action's conditions of acceptance, and so on.The article is mainly composed of five parts besides index and epilogue:The first part firstly introduces the confirmation of non-infringement of intellectual property system in civil law and common law, then introduces the development process of confirmation of non-infringement of intellectual property in Chinese.The second part analyzes different views about the nature of the confirmation of non-infringement of intellectual property, based on some of the views presented in this paper, the author believes that, the action is action for declaratory judgment.The third part, from four aspects, analyzes the rationality of constructing a system of confirmation of non-infringement of intellectual property. The fourth part according to the article 18 of the judicial interpretation of Supreme People's Court, analyzes the action's conditions of acceptance of non-infringement of intellectual property, which include the general conditions and special conditions.The fifth part firstly analyzes the regional jurisdiction of this kind of litigation. Then researches and analyzes the way to deal with the situation when non-infringement action and the action in tort in the presence at the same time,such action's counterclaim, the res judicata of the action, and so on.