The provision of intellectual property evidence facilitates the collection of evidence in the Internet era

"The Supreme People's Court about intellectual property rights civil action evidence certain rules" (hereinafter referred to as "known to produce evidence rules") based on the characteristics and actual intellectual property litigation, civil litigation of intellectual property rights issues more prominent evidence submitted, preservation of evidence, judicial identification, and to make provisions for the protection of commercial secrets, in litigation has very important meaning in the Internet age." Zhong LAN 'an, director of the trademark and unfair competition department of the Beijing Capital Law Firm, told China Trade News in an interview.

Zhong LAN 'an introduced that article 7 of the Regulations on Intellectual Property Rights provides great convenience for the obligees to obtain evidence in the Internet era, and provides firm legal protection for the obligees to protect their online intellectual property rights. As is known to all, China is a country of Internet application, and the infringement of intellectual property rights occurs frequently on the Internet. In such a context, once an obligee finds that his intellectual property rights are infringed on the Internet, he can purchase the infringing products by himself or by entrusting others, so as to obtain the evidence of infringement.

Zhong LAN an introduced a case that he represents to the reporter. A patentee found that a product on Taobao infringed his patent. In accordance with Article 7 of the Provisions on Evidence of Intellectual property rights, the patentee entrusts a notary of the notary office to purchase an infringing product and obtains evidence of infringement such as the product and the sales certificate. On this basis, the patentee filed a suit in the people's court to protect his rights. The people's court finally recognized the evidence of infringement, confirmed the establishment of the infringing act, and judged the infringer to stop the infringement immediately and compensate the patentee for the economic losses.

"Clarifying the burden of proof is one of the highlights of the Regulations." Beijing Capital law firm patent law Office director Gao Xiaoli told reporters. According to the provisions, if a product manufactured by a patented process is not a new product, the plaintiff in the dispute over the patent right shall provide evidence to prove that the product manufactured by the defendant is the same product as the product manufactured by the patented process; The product manufactured by the defendant is more likely to be manufactured by patented method; The plaintiff made reasonable efforts to prove that the defendant used the patented method. After the plaintiff has completed the proof mentioned in the preceding paragraph, the people's court may require the defendant to prove that the manufacturing method of the product is different from the patented method.

Xiao-li gao said that the provision has been clear about the products do not belong to the new product method patent allocation of burden of proof, which reduces the infringement lawsuit products do not belong to the new product method patent patent holder of the burden of proof, reduces the manufacturing of the product is not new product method patent holder to maintain their legitimate rights and interests of the difficulty.

In the Internet era, high and new technologies have added difficulties to the identification of evidence, especially in integrated circuits, biomedicine, software code and other technical fields.

"The people's court may entrust an appraisal to the technical problems of the means, functions and effects of the accused infringing technical scheme, patented technical scheme and corresponding technical features of the existing technology." With the permission of the people's court or with the consent of both parties, the expert may entrust other testing institutions with some of the testing matters involved, and the expert shall be legally liable for the opinions based on the test results, Gao said.

Deng Chao, a lawyer at Yingke Law firm in Beijing, said it was also common in judicial practice to review or even overturn expert opinions. Appraisals are expensive, both in terms of time and cost, making them difficult to overturn. As a result, in the past, the phenomenon of "examination-taking" often appeared in practice. However, as long as the parties and lawyers strictly implement that the appraisal is only aimed at the specialized factual problems, make clear that the appraisal is the process to help the judge find the facts, and the basic principle that the application of law must be carried out by the judge, the occurrence of "congnition and examination" can be avoided.

For foreign trade enterprises, extraterritorial evidence acquisition and recognition rules are very important. In the Provisions on Evidence of Intellectual property, the requirements for extraterritorial evidence have been substantially changed.

"Previously, the court required all extraterritorial evidence to be notarized by foreign notaries and authenticated by Chinese embassies and consulates. However, this requirement is not only very tedious for the right holder, but also often meaningless. Unlike the domestic notarization, which notarizes the whole formation process of evidence, the object of foreign notarization is often the already formed evidence. In this case, the notary office can only notarize the original copies and the parties' signatures on the spot, but it does not involve the authenticity of the evidence." Deng chao said, for contracts and other private documents, its authenticity can be completely determined by the parties in the trial of evidence cross-examination. Due to the above reasons, it is no longer required to notarize and authenticate the private document evidence formed outside the region in the Provisions on Evidence of Intellectual property. However, as for the document evidence formed outside the region, it is presumed to be true, so the form of evidence is required to be notarized. In addition to notarization, evidence related to identity relationship also needs to be authenticated, because Chinese embassies and consulates stationed abroad have the functions of managing identity relationship and so on. Identity relationship involves basic ethics, which is not applicable to self-admission and needs to be ascertained by the court according to its authority. Therefore, the form of evidence is the most demanding.

Deng Chao said that in keeping with the requirements of the Regulations on evidence of Intellectual property, the regulations on evidence of Intellectual property stipulates that extraterritorial evidence determined by effective judgments of courts and arbitration institutions, publications obtained from public channels and other extraterritorial evidence may not be notarized or certified. Authentication may not be carried out for extraterritorial evidence whose authenticity is recognized by the other party or confirmed by the testimony of witnesses. At the same time, it simplifies the certification procedures for power of attorney issued by parties outside the region, and after the first instance is completed, it may not be handled in subsequent proceedings.