On November 9, 2020, the Supreme People's Court approved the Provisions of the Supreme People's Court on Evidence in Intellectual Property-Related Civil Litigations (hereinafter referred to as the "Provisions"). The Provisions took effect on November 18, 2020.
In total, the Provisions consist of 33 articles, focusing on solving prominent problems related to evidence in intellectual property-related civil litigations. The issues that have been clearly stipulated in the Civil Procedure Law, the judicial interpretations of the Civil Procedure Law and the judicial interpretation of evidence in civil litigations are not repeatedly contained in the Provisions.
The Provisions further improve such important systems as evidence submission, evidence spoliation, evidence preservation and judicial appraisal, and reduce the burden of proof on IP right holders.
I. Concrete Measures to solve the problems in Evidence Collection
Since intellectual property rights are intangible, the evidence related to the infringement of intellectual property rights, which is relatively a covert activity, is often in the hands of the infringer. It is difficult for the right holders to obtain the evidence directly. The Provisions provide a series of combination rules to reduce the burden of proof on right holders and strengthen the judicial protection of intellectual property rights. Such combination of rules mainly includes the following four aspects:
First of all, Article 1 of the Provisions makes clear the principle of good faith. The principle of good faith is a fundamental principle that runs throughout the process of intellectual property civil litigations. It requires all parties concerned to exercise their litigation-related rights and fulfill their litigation-related obligations in accordance with the law, strictly follow litigation procedures, and proactively abide by effective judgments.
Secondly, on the basis of adhering to the principle that the claimant bears the burden of proof, Article 2 of the Provisions further refines and elucidates Article 65 of the Civil Procedure Law that a people's court shall "determine the evidence to be provided by a party and the time limit for the provision of such evidence". According to Article 2, the people's court may require a party to provide relevant evidence based on the party's claims, facts to be proved, evidence held and ability to produce evidence by the parties. Article 2 is aimed at further clarifying the burden of proof on the party that has evidence, urging all parties to actively produce evidence, and ensuring that the people's court can accurately ascertain the facts of the case.
Thirdly, in addition to documentary evidence, other types of evidence such as physical evidence, electronic data and audiovisual materials are also common in intellectual property civil litigations. Sometimes they are even key evidence. Therefore, on the basis of the "documentary evidence provision system" stipulated in Article 112 of the judicial interpretations of the Civil Procedure Law, Article 24 of the Provisions further clarifies that by means of a legal instrument such as a ruling the people's court has the rights to order the other party submit evidence in its hands, including both documentary evidence and other types of evidence .
Fourthly, in order to ensure the implementation of relevant stipulations in the Provisions, Article 25 of the Provisions makes special provisions on the spoliation of evidence. When a the people's court requires a party to submit relevant evidence in accordance with the law, and such party refuses without justifiable reasons, submits false evidence, destroys the evidence, or commits any other acts that renders the evidence unusable, the people's court may presume that the other party's claims about the matters involving the evidence are established; if the spoliation of evidence by the party constitutes spoliation in civil litigations as stipulated in Article 111 of the Civil Procedure Law, the people's court shall impose penalties in accordance with the law.
II. Evidence Preservation Stipulated in the Provisions
The Provisions contain stipulations corresponding provisions on the review of motions for evidence preservation applications, the measures of evidence preservation, the consequences of obstructing evidence preservation, the legal liabilities for destroying evidence that has been preserved, the participants in evidence preservation, the preparation of evidence preservation transcripts, and the filing of objections by the respondents so as to further standardize the evidence preservation procedures as well as make the Provisions more instructive and feasible. The Provisions cover the following 3 aspects on evidence preservation:
First, in judicial practice, it occurs occasionally that a party refuses to cooperate with the court in the evidence preservation procedure or even obstructs the procedure of evidence preservation. In order to urge the parties to fulfill their litigation-related obligations in accordance with the law, ensure the smooth implementation of evidence preservation, and maintain judicial authority, Article 13 and Article 14 of the Provisions make it clear that when a party refuses to cooperate without justifiable reasons or obstructs evidence preservation, making it impossible to preserve evidence, or when a party destroys evidence that has been preserved, rendering the evidence unusable, the people's court may determine that such party shall bear the adverse consequences. If the relevant acts constitute "forgery or destruction of important evidence" or "refusal to perform the legally effective judgment or ruling of the people's court" as stipulated in Article 111 of the Civil Procedure Law, the people's court may adopt coercive measures in accordance with the law to stop the evidence spoliation in civil litigations.
Second, in order to balance the interests of the applicants and the respondents involved evidence preservation, Article 12 of the Provisions stipulates that evidence preservation shall be limited to fixing evidence effectively and minimize the damages to the value of the objects preserved as well as the impacts on the normal production and operations of the evidence holders.
Third, in order to accurately ascertain the facts of a case and prevent the applicants from abusing the system of evidence preservation, Article 18 stipulates that if the applicants waives the use of any preserved evidence, but the preserved evidence involves the finding of the basic facts of the case or other parties require the use of the preserved evidence, the people's court may review the evidence in accordance with the law.
III. Judicial Appraisal Involved in the Provisions
Intellectual property cases often involve complex technical issues. In order to ensure that the facts of cases are accurately ascertained, a well-developed technical fact finding mechanism has been established, and judicial appraisal is an important part of the mechanism. Regarding judicial appraisal, the Provisions mainly contain the following stipulations:
First of all, Article 19 of the Provisions clearly stipulates that appraisal entrusted by a people's court shall be limited to "special issues of facts to be proved". Issues that involve the application of laws, such as whether there is patent infringement by equivalence, and whether there is substantial similarity in copyright infringement in civil litigations, do not fall within the scope of entrusted appraisal.
Secondly, in judicial practice, if the entrusted appraisal involves complex or emerging technical issues, more sophisticated professional testing instruments and equipment may be required. According to Article 20 of the Provisions, with the permission of the people's court or the consent of both parties, the appraiser may entrust some of the testing tasks involved in the appraisal to other testing institutions, such as scientific research institutes, laboratories, and universities/colleges with corresponding technical capabilities, and then the appraiser shall issue appraisal opinions based on the test results and bear the legal responsibilities.
Additionally, if the entrusted appraisal involves a special field of expertise or if the entrusted appraisal falls into the field of cutting-edge technology, it may be possible that the "unified registration and management system for appraisers and appraisal agencies" has not yet been implemented in the given field, but the facts of the case need to be ascertained through entrusted appraisal, Article 21 of the Provisions stipulates that professional organizations and professionals with corresponding technical capabilities may be chosen in accordance with the provisions of the judicial interpretations of evidence in civil litigations concerning the appraiser selection and appointment procedures, so as to better resolve the problems in the finding of technical facts.
IV. Protection of Trade Secrets in the Provisions
The Provisions specify the confidentiality measures that a people's court can take and restrictions that can be put on the entities/individuals whose access to relevant evidence is restricted. Article 26 stipulates that if the evidence involves trade secret or other business information that needs to be kept confidential, the people's court shall require the parties in the civil litigations to sign a confidentiality agreement or make a confidentiality undertaking or by means of a legal instrument such as a ruling, order the parties to assume their confidentiality obligations, and not to disclose, use, or allow others to use the secret information accessed in the proceedings for any purposes other than the litigations before the parties have access to the evidence. If a party applies for restrictions on the scope of persons that may have access to the evidence, the people's court shall give permission when the court deems it necessary after review.
"Legal instruments such as a ruling" ordering parties in the civil litigations assume their confidentiality obligations are more binding and coercive. If any party violates the confidentiality obligation stipulated in the ruling and commits the acts of "refusal to perform the legally effective judgment or ruling of the people's court" in Article 111 of the Civil Procedure Law, the people's court shall impose penalties in accordance with the law.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
