In order to protect the litigious rights of all litigants and make sure intellectual property courts could be held in time, the Supreme Court has recently published a new judicial interpretation on civil evidence for intellectual property cases based on trial facts. This judicial interpretation is targeted on those highlighted questions on presentation of evidence, obstruction of proof, preservation of evidence and forensic examination to further improve the litigation system of intellectual property.

Intellectual property infringements are usually covert, those key evidences are under infringers’ control and the right owners are hard to get the evidences directly. So the burden of proof for the right owners would be reduced and protection for intellectual property would be enhanced according to laws.

• The principle of good faith is stated clearly in the judicial interpretation, leading litigants to provide evidences actively, fully, correctly and honestly through the popularity of good faith.
• Evidences which the litigants shall provide and their compliant periods are confirmed under the basis of “Who claims shall provide evidences”. The court could require the litigant to provide relevant evidence to supervise and urge litigants to provide evidences actively based on the claim, factum probandum, capacity of proof and the circumstance of holding proof.
• Sometimes other types of evidence as physical evidence, electronic data, audio-visual material are essential, so it’s stated that the court has the power to order the opposite litigants to provide evidence under their control through legal instruments. The “evidence” referred here includes documentary evidence and also other types of evidence above.
• For obstruction of proof, the court may presume the evidence which the opposite litigant provides stands if the litigant refuses to submit evidence, submits false evidence, destroys evidence or commits any other act which causes the evidence unusable without proper reason.

In this judicial interpretation, further regulations for preservation of evidence are given combined with the specialties of intellectual property cases, like examination of application, measures of preservation, consequences for obstruction, legal liability for destruction of preserved evidence, participants, production for records and objection by the respondent.

• The court may rule for litigant to take unfavorable consequences or sometimes even coercive measure when the litigant refuses to cooperate or obstructs the preservation without proper reason, which results in the inability to preserve evidence, or destroys the preserved evidence causing the evidence unable to be used.
• In order to balance the interests of all litigants, the preservation of evidence shall be limited within the scope of effective fix for evidence as to minimize the damage for value of the object and the impact on the normal production and operation of the evidence holder.
• To prevent the abusing for preservation of evidence, the court may examine and determine the evidence when the litigant waives the use for the preserved evidence while the preserved evidence is relevant to the discovery of the basic facts or the other party claims to use it.

As for forensic examination, it’s stated that the entrusting examined issue from the court shall be limited within the specialized problem which is going to be proved, from which the problem of law application is not included. If the examined issue involves difficult or new technical problem which might need professional machine or equipment, that part of the issue could be entrusted to other institutions like qualified labs or universities under the permission of the court or both sides of the litigants.

If the evidence involves trade secrets or other business information that needs to be kept confidential, the court shall require the litigants to sign a confidentiality agreement, make a promise of confidentiality or order them to undertake the obligation of confidentiality through legal instruments as rulings before they get the information, restricted any disclosure, use or permission to use for the confidential information which has been reached out during the proceedings.

If you want to read the complete article, you can refer to the below link (in Chinese only):  http://www.shanghaiinvest.com/cn/viewfile.php?id=15517

If you have any question, please contact me.

Mr. Mike Chang (Partner)

TEL: 0086-21-68868321

Email: mikechang@shanghaiinvest.com