Research On The Problems Of Non-infringement Action Of Intellectual Property

China’s current legislation formally recognizes the non-infringement action of intellectual property rights,and the provisions of the Supreme People’s Court on evidence in civil litigation of intellectual property rights further clarify that the plaintiff has the burden of proving the legitimacy of the lawsuit.Although the legislative framework has been basically established,this type of litigation is still the focus of judicial judgment.This provides thinking clues and context for further in-depth observation and analysis of the basic problems of confirming non infringement litigation.In this paper,the above issues are included in the four basic theoretical issues involved in the action of confirming non infringement of intellectual property rights,which are studied and discussed respectively.The first chapter is to confirm the operation status of the action of noninfringement of intellectual property rights.This chapter first summarizes the system value and characteristics of the action of confirming non infringement of intellectual property rights.Secondly,it combs the legislative norms and judicial status quo.In terms of legislative norms,clarify the contents of relevant norms such as the current judicial interpretation,and summarize the important characteristics of the current legislative situation.In terms of judicial practice,it summarizes the representative judgment views and trial experience in practice,and on this basis,it summarizes the important differences in judicial judgment,including the identification of infringement warning,the existence or abolition of reminder,the influence of administrative act and the identification of litigation object.The second chapter is to confirm the interests of non-infringement of intellectual property rights.The first section summarizes the connotation and function of confirming interests.The second section points out the shortcomings of the existing judgment methods of confirming interests,mainly due to the lack of comprehensive analysis of substantive rights and procedural rights in litigation.The third section puts forward the specific improvement path of the judgment method.First of all,the interests claimed by the plaintiff in this lawsuit are qualitative,and they still belong to the interests of substantive law.Secondly,it discusses the relationship between the legitimate interests claimed by the plaintiff and the confirmed interests,and the claim of the interests constitutes one of the elements of the confirmed interests.Thirdly,combined with the particularity of intellectual property,it defines the specific content of the legitimate interests claimed by the plaintiff,which is the rational use of intellectual property or the rights and interests of intellectual property,as well as the rights and interests of legitimate operation and participation in market competition,and there is a certain blending relationship between the two rights and interests.The third chapter is the prosecution conditions for confirming the action of noninfringement of intellectual property rights.The first section is the identification and regulation of infringement warning.Infringement warning is the key element to judge whether the plaintiff meets the requirements of filing a lawsuit to confirm noninfringement of intellectual property rights.Firstly,the essence of infringement warning is clarified.Infringement warning is the act of exercising the claim right of intellectual property（mainly the claim right to stop infringement）.Secondly,the forms of infringement warning are limited,including sending infringement warning letter,applying for administrative protection and applying for pre litigation preservation.Thirdly,different legitimacy standards are constructed according to different forms of infringement warning.The second section is the behavior and time limit after being urged.It points out the possible conflicts between the existing judicial interpretations,and clarifies the essential meaning of the relevant norms.The third section is the expansion of the scope of qualified parties.The newly promulgated judicial interpretation has relaxed the requirement that the issuer of infringement warning must be the oblige,which has a certain positive significance.The fourth chapter is the confirmation object of the action of confirming noninfringement of intellectual property rights.The first section is to confirm the object and interests.It mainly clarifies the relationship between the object of confirmation and the action of confirmation,and clearly discusses the important value of the object of confirmation of such action independently.The specific content of section II is the confirmation object.The exercise of intellectual property claim right manifested as infringement warning is included in the two litigation procedures of intellectual property infringement lawsuit and confirmation of non-infringement lawsuit respectively,and the essential connotation of the confirmation object of confirmation of non-infringement lawsuit is studied from the perspective of "attack and defense method",which is to request to confirm the non-existence of infringement facts or the existence of defense causes other than the defense of invalid rights.The action of confirming non-infringement,which takes this as the confirmation object,although it does not directly point to the absence of intellectual property claim,it is an important way to restrict the exercise of intellectual property claim by means of litigation.The fifth chapter is the identification of litigation object in infringement warning related litigation.The first section is the identification standard of litigation object.Firstly,it explains the necessity of discussing this issue,and then summarizes various theories of identifying the subject matter of litigation.The second section is the specific identification of the object of litigation.Firstly,the influence of "cause of action" on the identification of litigation object in practice is excluded.Secondly,the identification method of litigation object is disassembled from the two parts of litigation claim and fact.Finally,it is proposed that in the litigation caused by infringement warning,the key to identify the litigation object is to distinguish the claim right in the litigation,that is,to distinguish whether the payment claim right proposed by the plaintiff in the litigation is the claim right that coincides with the right to request confirmation,or whether it belongs to two independent claims with the right to request confirmation,and the distinction standard is various legal facts in the dispute,and the so-called legal facts should be deconstructed into the way of infringement warning and the content of infringement warning,because both may affect the plaintiff’s substantive interests or legal status.