Evidence preservation in patent infringement suits in China

How to obtain evidence has always been a problem facing plaintiffs in patent infringement suits. This difficulty is particularly pronounced in the case of infringing products that have specific sales channels or sales markets.

For example, when an alleged infringing product is a large piece of industrial machinery or equipment, it is impossible for the patent holder to secure evidence through commercial purchase on the market. Lawyers need to formulate a tailored evidence-gathering plan based on the actual circumstances of the case. In this column, the author discusses the application of evidence preservation in patent infringement suits.

LEGAL BASIS

The term “evidence preservation” means the act by a court to investigate, collect, fix and protect evidence pursuant to an application or ex officio, where such evidence could be destroyed or lost, or be difficult to secure in future.

Article 81 of the Civil Procedure Law improves the framework of China’s evidence preservation system, specifying that, “In urgent circumstances, where evidence could be destroyed or lost, or be difficult to secure in future, a materially interested person may apply for evidence preservation to the People’s Court of the place where the evidence is located, the place where the respondent is domiciled or the competent People’s Court in the case before he/she institutes a legal action or applies for arbitration”.

The judicial interpretations for the Civil Procedure Law add greater detail to the above-mentioned. Courts in various places, such the Beijing High Court, Shanghai High Court, Zhejiang High Court, etc., have all formulated more specific regulations.