On June 15, 2020, the Supreme People's Court ("SPC") released for public comments a draft of the Provisions on Evidence in Civil Proceedings Involving IP Disputes ("the Draft", http://www.court.gov.cn/zixun-xiangqing-236421.html). The Draft is composed with 4 parts: 1. Evidence Production by the Parties; 2. Investigation, Collection and Preservation of Evidence; 3. Evidence Exchange and Cross-examination; 4. Evidence Examination and Verification.

Though the Draft is not currently effective, given that provisions relating IP has been changing frequently in recent year, it released some interesting signals.

Once effective, it would be of great benefits for foreign IPR owners.

We notice 3 provisions regarding extraterritorial evidences are generally favorable to overseas' IPR owners, and they largely simplify some time-consuming and costly procedures.

Art. 9 provides that the court shall reject the objection of a party in an intellectual property dispute to admission of evidence formed outside the territory of the People's Republic of China solely on the ground that the evidence is not legalized under the following circumstances:

a) The party expressly acknowledges authenticity of the evidence;

b) The producing party provides testimony that confirms authenticity of the evidence, and the witness expressly indicates that he or she is willing to be punished for perjury;

Art. 10 provides that for the following evidence formed outside the territory of PRC, the people's court shall not support any objection made by the other party involved in civil actions over intellectual property only on the grounds that the evidence has not been notarized or legalized:

c) It has been confirmed by an effective judgment of People's Court or an effective award of an arbitration tribunal.

d) It belongs to public publications and patent search documents that can be obtained from official or public sources.

e) There are other ways to verify the authenticity.

Previous to the newly released Evidence Rules in Civil Proceedings, all evidences generated outside of China shall be somehow notarized and legalized before they are going to be presented as evidence to the court, specifically, legalization requires foreign companies to go to the Chinese consulate of their country and make authentication of their notarized documents.

Such practice is costly in both time and money. SPC seems trying to waive such obligation from foreign IPR owner. Meaning, the legalization is no longer needed if above requirements are reached.

We can also see from Art. 10 that, apart from legalization, SPC is even trying to waive foreign IPR owner's obligation from having to notarize everything if such evidence is affirmed or can be acquired by other means. Art. 11 provides that the court may infer the attorney is entitled to all proceedings related with a power of attorney formed overseas yet didn't clarify the proceedings the attorney can attend, and the court may also infer that the attorney can receive court's service in subsequent proceedings.

Notarization and legalization for power of attorney of further proceeding may be waived if the power of attorney of 1st instance is notarized and legalized.

Different from the use of "shall" in Art. 9 and 10, SPC use "may" in Art. 11 which leaves some space for the court to interpret. Meaning that the court may still reject the attorney based on using a "bad" power of attorney trying to attend further proceedings. Yet compared to some mechanical and inflexible measures adopted by certain courts, such provision provides an argument as weapon for the attorneys.

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