On November 16, the Supreme People's Court issued the "Provisions on Evidence in Civil Litigation of Intellectual Property Rights" (hereinafter referred to as the "Provisions"), which will be implemented on November 18, 2020. The "Regulations" play an important role in protecting and facilitating the parties to exercise their litigation rights in accordance with the law, and ensuring that the people's courts try to hear intellectual property civil cases in a fair and timely manner.
There are 33 articles in the "Regulations", which provide for evidence determination, evidence preservation, judicial appraisal, and basis for compensation that are more prominent in intellectual property civil litigation, which appropriately reduces the burden of proof by the right holder and facilitates the exercise of litigation rights in accordance with the law. This article will briefly organize and summarize the relevant content of the Regulations.
1 Expanded scope of infringement evidence
Difficulty in producing evidence in intellectual property litigation is a problem that has always plagued right owners. Article 7 of the “Regulations” clearly states that in order to discover or prove intellectual property infringements, the right holder himself or entrusts others to purchase the infringing goods from the accused infringer in the name of ordinary purchasers. Evidence of the infringement against the infringer .
2 Special provisions for extraterritorial evidence
In order to minimize the notarization and certification procedures of foreign evidence documents and simplify the legal form requirements of evidence, Articles 8 and 9 of the "Regulations" make special provisions for foreign evidence.
Evidence that does not require notarization and certification includes :
(1) It has been confirmed by a legally effective people’s court judgment;
(2) It has been confirmed by an effective ruling of an arbitration institution;
(3) Public publications, patent documents, etc. that can be obtained from official or public channels;
(4) There is other evidence to prove the authenticity.
Evidence outside the domain that does not require authentication includes :
(1) The party who raised the objection clearly recognized the authenticity of the evidence;
(2) The opposing party provided witness testimony to confirm the authenticity of the evidence, and the witness clearly stated that he would be punished if he gave false testimony.
3 No need to repeat the entrustment certificate
The "rule" Article X in the first instance has been handled power of attorney notarization, authentication or other certification procedures, and in the subsequent proceedings , can no longer handle the certification procedures.
4 Factors to be considered for evidence preservation
The "Regulations" point out that the people's court should review the application for evidence preservation by the parties or interested parties in combination with the following factors:
(1) Whether the applicant has provided preliminary evidence for its claim;
(2) Whether the evidence can be collected by the applicant itself;
(3) The possibility that the evidence will be lost or difficult to obtain in the future and its impact on the facts to be proved;
(4) ) The impact of possible preservation measures on evidence holders.
5 Techniques and methods of evidence preservation
The "Regulations" clarified the preservation methods, and pointed out that the people's courts should limit the effective fixed evidence in order to minimize the damage to the value of the preservation object and the impact on the normal production and operation of the evidence holder.
Where the preservation of evidence involves technical solutions, preservation measures such as making on-site inspection transcripts, drawing, photographing, recording, video recording, copying designs and production drawings may be adopted.
6 Evidence preservation site related measures
Article 16 of the "Provisions" stipulates the relevant measures of the people's courts at the evidence preservation site: the people's courts shall make a record and a list of evidence preservation in order to preserve evidence, and record the preservation time, place, implementer, persons present, preservation process, The state of preservation of the subject matter shall be signed or sealed by the implementer and the persons present.
Of course, if the person concerned refuses to sign or seal, the effectiveness of the preservation will not be affected , and the people's court can record it in the transcript and take photos and videos.
If the respondent raises an objection to the scope, measures, necessity, etc. of the evidence preservation and provides relevant evidence , the people’s court may change, terminate, or cancel the evidence preservation if the people’s court finds that the reason for the objection is established after review .
7 Scope of application for entrusted appraisal
Regarding the specific issues of facts to be verified, the people's court can apply to relevant agencies for entrusted appraisal. The specific scope of entrusted appraisal includes:
(1) The similarities and differences between the alleged infringing technical solution, the patented technical solution, and the corresponding technical features of the existing technology in terms of means, functions, and effects;
(2) The similarities and differences between the alleged infringing work and the work claiming rights;
(3) The parties The similarities and differences between the claimed trade secrets and the information already known to the public in the field, the similarities and differences between the alleged infringement information and the trade secrets;
(4) The similarities and differences between the alleged infringing object and the authorized variety in terms of characteristics and characteristics, whether the difference is due to Caused by non-genetic variation;
(5) The similarities and differences between the alleged infringing integrated circuit layout design and the claimed integrated circuit layout design;
(6) Whether the technology involved in the contract has defects;
(7) The authenticity and completeness of the electronic data sex;
(8) other commission to identify special issues.
8 Review factors of the appraiser by the court
In order to avoid a dispute on procedural defects by a party dissatisfied with the appraisal result, the court needs to review the appraisal party’s qualifications, ability, and position when entrusting the appraisal, including:
(1) Whether the appraiser has the corresponding qualifications;
(2) Whether the appraiser has the knowledge, experience and skills necessary to solve related specialized problems;
(3) Whether the appraisal methods and procedures are standardized and whether the technical means are reliable;
(4) Submit for inspection Whether the materials have been cross-examined by the parties and meet the appraisal conditions;
(5) Whether the basis of the appraisal opinion is sufficient;
(6) Whether the appraiser has a legal cause that should be avoided;
(7) Whether the appraiser has practiced favoritism or otherwise affects the fair appraisal during the appraisal situation.
9 Evidence basis for compensation amount
Article 31 and Article 32 of the "Provisions" clearly state: financial account books, accounting vouchers, sales contracts, purchase and delivery documents, annual reports of listed companies, prospectuses, websites or brochures and other relevant records provided by the parties , equipment systems storage of transaction data , third-party platform statistics of commodity circulation data , assessment report report, IP licensing the use of contracts and market regulation, taxation, financial sector records , etc., can be used as evidence to prove the amount of compensation for a party's assertions of intellectual property rights infringement .
10 Review and determination of compensation amount
Where the parties claim to determine the amount of compensation with reference to a reasonable multiple of the intellectual property license fee, the people's court may consider the following factors to review and confirm the license fee evidence:
(1) Whether the license fee is actually paid and the method of payment, whether the license contract is actually performed or filed;
(2) The content, method, scope, and time limit of the license to be used;
(3) Whether the licensee and the licensor have an interest relationship ;
(iv) industry standards generally permitted.
The promulgation and implementation of the "Provisions on Evidence in Civil Litigation of Intellectual Property Rights" will reduce the cost of rights protection in civil litigation of intellectual property rights, improve the quality and effectiveness of judicial protection of intellectual property rights, and promote the creation of a market-oriented, legalized, and internationalized business environment. Has an important role.
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