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declaratory actions

Chinese translation: 确认之诉

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GLOSSARY ENTRY (DERIVED FROM QUESTION BELOW)
English term or phrase:declaratory actions
Chinese translation:确认之诉
Entered by: Li Rui
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10:29 Feb 17, 2009
English to Chinese translations [PRO]
Law/Patents - Law (general)
English term or phrase: declaratory actions
原文为: "In new EU countries, where declaratory actions are allowed, cross-border proceedings could block or seriously delay infringement actions in other EU national courts."

Thanks!
Kinkin
确认之诉
Explanation:
确认之诉就是要求确认权利关系或法律关系之诉,承认这种请求的判决被称为确认判决。“确认某物的所有权人为原告”、“确认某法人的代表人为原告”等等就是确认之诉的例子。
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Li Rui
China
Local time: 01:18
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Selected automatically based on peer agreement.
4 KudoZ points were awarded for this answer

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Summary of answers provided
3 +2确认之诉
Li Rui
4声明(宣示)行为windmuse


  

Answers


2 hrs   confidence: Answerer confidence 3/5Answerer confidence 3/5 peer agreement (net): +2
确认之诉


Explanation:
确认之诉就是要求确认权利关系或法律关系之诉,承认这种请求的判决被称为确认判决。“确认某物的所有权人为原告”、“确认某法人的代表人为原告”等等就是确认之诉的例子。


    Reference: http://gongjushu.cnki.net/CRFDHTML/r200611154/r200611154.5d4...
    Reference: http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title...
Li Rui
China
Local time: 01:18
Works in field
Native speaker of: Native in ChineseChinese
PRO pts in category: 18
Grading comment
Selected automatically based on peer agreement.

Peer comments on this answer (and responses from the answerer)
agree  Shirley Chen
3 hrs
  -> Thank you, Shirley Chen!

agree  Yurek
1 day1 hr
  -> Thank you, Yurek Zhang!
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15 hrs   confidence: Answerer confidence 4/5Answerer confidence 4/5
声明(宣示)行为


Explanation:
I think the full expression should be "declaratory judgment actions".
其定义和特点如下:

A declaratory judgment is a judgment of a court in a civil case which declares the rights, duties, or obligations of each party in a dispute.

A declaratory judgment or ruling is binding as to the duties, rights, obligations and status of the parties. However, a declaratory judgment does not order any action or result in any award of damages to any party to the case.

A declaratory judgment is typically requested when a party is threatened with lawsuit and the threatened lawsuit is not yet filed; or when it is thought by one of two (or more) parties that their rights under law and/or contract might conflict; or as part of a counterclaim to prevent further, similar lawsuits from the same plaintiff (for example, when only a contract claim is filed, but a copyright claim might also be applicable).

可见,这是在进行诉讼之前由法庭做出的一种确认各方权利、责任及义务的行为,但并不要求采取任何实际诉讼行动或导致任何赔偿。

对这一行为在专利侵权诉讼中所起作用的解释如下:

Declaratory judgment actions in patent litigationDeclaratory judgments are common in patent litigation - as well as in other areas of intellectual property litigation - because declaratory judgments allow an alleged infringer to "clear the air" with regard to a product or service which may be the focal point of a business. Take for example a typical claim of patent infringement. When a patent owner becomes aware of an infringer, the owner can simply wait until he pleases to bring a suit for infringement (subject to the six year statute of limitations). Meanwhile, the monetary damages continuously accrue - with no effort expended by the patent owner, apart from marking the patent number on products the patent owner sold or licensed. On the other hand, the alleged infringer could do nothing to rectify the situation if no declaratory judgment existed. The alleged infringer would be forced to continue to operate his business with the cloud of a lawsuit over his head. Fortunately, the declaratory judgment procedure allows the alleged infringer to proactively bring suit to resolve the situation and eliminate the cloud of uncertainty looming overhead.

Common claims for declaratory judgment in patent cases are non-infringement and patent invalidity. In order to bring a claim for declaratory judgment, the claimant must (1) have a basis in federal subject matter jurisdiction in the claim and (2) establish that an actual controversy exists. In patent infringement cases, as opposed to disagreements about a patent license, it is clear that federal subject matter exists, because patent infringement cases are exclusively determined by the federal court system. If there is a substantial controversy of sufficient immediacy and reality, the court will generally proceed with the declaratory judgment action, although it has some discretion to decline jurisdiction, such as where the claimant filed suit while engaged in negotiations with the patent owner. The case of EMC Corp. v. Norand Corp. 89 F.3d 807 (Fed Cir. 1996) provides some examples where jurisdiction was declined. Usually the claimant is actually making, using, selling, offering to sell or importing or is prepared to actually make, use or sell, offer to sell or import an allegedly infringing device or method, and usually the patent owner has claimed that such activities by claimant will result in patent infringement. An express threat of litigation is not needed, nor is it a guarantee that jurisdiction will be granted. Some factors courts have considered in this analysis are whether a patent owner has asserted its rights against an alleged infringer in a royalty dispute, whether the owner has sued a customer of an alleged infringer, or whether an owner has made statements regarding its patents in trade magazines.

这也说明为何"In new EU countries...cross-border proceedings could block or seriously delay infringement actions in other EU national courts." 因为即使这些新欧洲成员国的司法制度和体系允许以声明行为来确定侵权诉讼中的原告和被告,在跨国界的情况之下仅仅要确定jurisdiction已是十分困难了,更不要说诉讼和裁决时所依赖的法律基础和体系可能属于对原告不利的一国。


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Note added at 15 hrs (2009-02-18 02:00:51 GMT)
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应该是“声明(判决)行为”

Example sentence(s):
  • http://encyclopedia.thefreedictionary.com/Declaratory+action
  • http://209.85.173.132/search?q=cache:mSE7tixS-9kJ:www.ipoef.org/AM/Template.cfm%3FSection%3DHome%26Template%3D/CM/ContentDisplay.cfm%26ContentID%3D8846+declaratory+actions&hl=en&ct=clnk&cd=87&gl=nz&lr=lang_zh-CN
windmuse
Local time: 06:18
Specializes in field
Native speaker of: Native in ChineseChinese
PRO pts in category: 4
Notes to answerer
Asker: 谢谢您的例句和解释! 元照字典上的翻译是"确权诉讼",供参考。

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Changes made by editors
Mar 3, 2009 - Changes made by Li Rui:
Created KOG entryKudoZ term » KOG term


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