Mastering the art of investigation and evidence gathering for patent actions

The gathering of evidence has always been a major legal obstacle that injured parties have faced in patent infringement actions. In a patent infringement case there usually is no direct physical connection or contact between the infringer and patent holder, meaning that evidence can only be obtained through investigation and collection by the patent holder.

As compared to ordinary types of cases, evidentiary standards in patent cases tend to be higher, increasing the weight of the burden of proof on the patent holder. The marked intensification of patent protection efforts in China in recent years has also, objectively, enabled infringers to accumulate experience in countering investigations and evidence gathering. In this column, the author intends to give an overview of the basic skills for investigating and gathering evidence for patent infringement actions.

Reliance on one’s own devices

One important direction in patent infringement cases is solidifying the existence of the facts of the infringement and relying on this to lock up such core information as the infringing entity, facts of the damage, extent of the damage, etc. Relevant information is often obtained by making an onsite purchase in the name of a third party, or by engaging a third party to make such purchase.

Vincent Mu is a senior associate and Ada Zhang is an associate at Martin Hu & Partners