Special provisions on the parties’ evidence

Patent infringement disputes, litigation to confirm non-infringement, cross-civil litigation, legal source defense, trap evidence collection, etc. are all types of intellectual property civil litigation. Ordinary civil litigation is a relatively special situation, and the corresponding evidence rules also have certain particularities. According to the practice of intellectual property civil trials, Articles 3, 4, 5, 6, and 7 of the "Intellectual Property Evidence Regulations" clarify the special provisions for the parties to provide evidence in the above situations.

Article 66, paragraph 1, of the Patent Law of the People's Republic of China stipulates the reversal of the burden of proof in disputes over patent infringement of new product manufacturing methods. However, in disputes over patent infringement of non-new product manufacturing methods, , the production steps and process parameters for manufacturing the infringing product are still in the hands of the infringer, and it is difficult for the rights holder to access the infringer's production site and production records to obtain complete evidence of the manufacturing method of the infringing product. However, compared with the new product manufacturing method patent, in the patent Before the filing date, the same product as the product manufactured by the patented method has been manufactured by other methods. Therefore, the possibility of the same product being manufactured by the patented method is not as high as the possibility of the new product being manufactured by the patented method. In order to accurately ascertain the facts of the case, Article 3 of the Intellectual Property Evidence Regulations stipulates that after the plaintiff completes the corresponding evidence production, the defendant shall provide evidence to prove that its product manufacturing method is different from the patented method. Among them, whether the plaintiff has made reasonable efforts to prove that the defendant used the patented method will be determined based on the specific circumstances of the case. For example, whether the plaintiff applies for evidence preservation, whether the plaintiff attempts to approach the defendant's production site to collect evidence, etc. can all be considered.

Legal source defense is a common defense in intellectual property infringement disputes. The establishment requirements include two things: subjective ignorance and objective legal source. It has been generally understood in practice that the defendant bears the burden of proof that the alleged infringing product or copy has a legal source. However, there is a question as to whether the defendant does not know the infringement facts and what degree of source evidence can prove the legal source. Different perceptions. From the perspective of judicial policy orientation, the seller is not the source of infringement, and the requirements for proof against it should not be too high. Article 4 of the "Intellectual Property Evidence Regulations" stipulates that if the defendant has provided evidence to prove that the source of the product is legal, it means that it was purchased through legal channels. If the alleged infringing product or copy is obtained through normal business methods such as a reasonable price, a qualified market entity, etc., it can be presumed that it is not at fault. This presumption can be rebutted by the right holder continuing to provide evidence, for example, the right holder has sent an infringement warning letter to the right holder. As for whether the source evidence provided by the defendant can prove that it was obtained legally, it should be judged in conjunction with its reasonable duty of care. The defendant's business scale, professionalism, market transaction habits, etc. can be used as evidence to determine its reasonable duty of care. Under normal circumstances, small traders in the wholesale market and trading companies of a certain scale have different cognitive abilities as to whether the allegedly infringing products and copies are infringing. The evidence provided by them from legal sources needs to be combined with the specific case circumstances and trading habits. judge.

Litigation to confirm non-infringement of intellectual property rights is a unique litigation in the field of intellectual property. In the "Interpretations of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Patent Infringement Dispute Cases" implemented in 2010, the litigation to confirm non-infringement of patent rights was The right to sue shall be clarified. Subsequently, the "Provisions on the Causes of Civil Cases" revised in 2011 clarified the actions to confirm non-infringement of trademark rights and copyrights. In judicial practice, parties also file lawsuits to confirm non-infringement of trade secrets. Article 5 of the Intellectual Property Evidence Regulations stipulates the plaintiff’s burden of proof when filing a lawsuit. It should be noted that this article is based on the procedural conditions for filing this type of lawsuit, that is, the conditions for whether the lawsuit is established. Therefore, it only stipulates the burden of proof for procedural matters and does not involve the proof of substantive matters whether there is infringement.

Different from ordinary civil litigation, it is very common for civil rights litigation to cross over in intellectual property litigation. Article 10 of the "Several Provisions of the Supreme People's Court on Evidence in Civil Litigation" (hereinafter referred to as the "Civil Evidence Provisions") revised in 2019 lists evidence-free facts.

In judicial practice, parties often submit review decisions on patents and trademarks, such as review, opposition, invalidation, and revocation in civil litigation. Some of these decisions have not undergone judicial review, and some are currently in administrative litigation. It needs to be clarified whether evidence is still required. Article 114 of the Interpretation of the Civil Procedure Law stipulates that matters recorded in public documents are presumed to be true, unless there is contrary evidence that is sufficient to overturn it. Based on this, Article 6 of the "Intellectual Property Evidence Provisions" applies the exemption rules based on the basic facts identified in administrative actions that basically have no risk of revocation, including the basic facts identified in administrative actions that do not initiate administrative litigation within the statutory time limit. The facts, as well as the basic facts determined by the administrative action, have been confirmed by the effective judgment.

The hidden nature of intellectual property infringement poses challenges to traditional evidence collection methods, and there are a large number of "trap evidence collection" situations in judicial practice. Trap evidence collection methods can be divided into "opportunity-providing type" and "criminal-intention-inducing type." As for the former, that is, the evidence collection method stipulated in Article 7, paragraph 1, of the "Intellectual Property Evidence Regulations", its purpose is not unfair, and its behavior does not harm the interests of the public and the legitimate rights and interests of others, and is in line with the judicial policy of strengthening protection. The evidence formed can be used as evidence for the right holder to sue for infringement. As for the latter, that is, infringements proven by the circumstances specified in Article 7, Paragraph 2, of the "Intellectual Property Evidence Provisions", the crackdown should be further intensified. Depending on the subject who induces the mens rea, the behavior induced by others will be included in the category of concurrent infringement. The rights holder can use the evidence formed to sue the accused infringer and the third party for concurrent infringement. However, actions solely based on the right holder’s instigation should be excluded from infringement, and the evidence obtained therefrom will not have evidential capacity.