China Releases IP Litigation Draft Provisions

In mid-June, the Supreme Folks’s Court docket launched a draft of Sure Guidelines of Proof in Mental Property Litigation (关于知识产权民事诉讼证据的若干规定（征求意见稿)) for remark. The draft incorporates 53 articles masking proof manufacturing by the litigants; investigation, assortment and preservation of proof; change of proof and cross examination; and verification and affirmation of proof.

A number of the extra related Articles embrace Article 3, 11, 12, 31, and 50.

Article 3, which offers with a shift in burden of proof for invention patents having methodology of producing claims, stipulates that the patentee should present proof that:

The product manufactured by the accused infringer is identical product because the product manufactured utilizing the patented methodology;

The merchandise manufactured by the accused infringer usually tend to be manufactured by means of the patented methodology; and

The patentee made cheap efforts to show that the accused infringer used the patented methodology.

Solely then, could the individuals’s courtroom require the accused infringer to offer proof to show that the manufacturing methodology of the product is totally different from the patented methodology.

Articles 9 – 11 make it simpler for litigants to offer international paperwork to Chinese language courts with out authentication. Article 9 offers that if proof has not been authenticated, the offering celebration can expressly acknowledge authenticity and/or present testimony of a witness to substantiate authenticity and keen to simply accept the penalty for perjury. Additional, in Article 10, the next proof doesn’t want authentication:

Proof which have been confirmed by an efficient judgment of a individuals’s courtroom or an efficient award of arbitration establishment;

Publications, patent retrieval literature, and so on. that may be obtained by means of official or public channels; and

Proof whose authenticity may be verified by different methods.

Article 11 covers international energy of attorneys and make the idea the facility of lawyer will cowl litigation procedures even when not expressly said on the international energy of lawyer. Additional, if there’s a energy of lawyer nevertheless it doesn’t give authorization for subsequent litigation procedures, the Folks’s Court docket will presume the shopper has approved the lawyer within the subsequent process.

Article 12 offers components for deciding an proof preservation request. The components embrace:

Whether or not the proof may be preserved by notaries;

The likelihood that proof will turn into unavailable or troublesome to acquire sooner or later;

The affect on the details to be confirmed if proof turns into unavailable or troublesome to acquire sooner or later; and

The impact of potential preservation measures on the possessor of proof.

Word that Articles 12-22 don’t require posting bond in pre-trial proof preservation requests, which might encourage extreme and maybe pointless proof preservation requests.

Article 31 offers for the safety of proof together with commerce secrets and techniques by stopping the events from inspecting, extracting, duplicating or photographing the commerce secrets and techniques – solely the events’ attorneys can study the commerce secrets and techniques.

Article 50 offers for components in evaluating proof of licensing charges when damages are based mostly on the identical. The components embrace:

Whether or not the licensee and the licensor have any possession curiosity in one another;

Whether or not the license charge has been paid and the precise fee methodology and whether or not the license contract has been truly carried out and filed;

The declare, scope, methodology, interval and area of the license.