Significant issues in determination and notarisation of online evidence

In the Invalidation Petition Review Decisions No. 19214 and 20747, the Patent Re-examination Board (PRB) of the State Intellectual Property Office has come out with two different opinions on the issue of whether other evidence is necessary to corroborate the genuineness of online evidence. In a case for the confirmation of a patent entitled “lift (multi-stage cylinder type)”, the opinions of the PRB and people’s courts at two levels on the determination of the time of publication of online evidence are also completely at odds (see Invalidation Petition Review Decision No. 20983 of the PRB, and the administrative judgments First Intermediate IP Administrative No. 2702 [2013] and High Administrative No. 1221 [2014], of the First Intermediate People’s Court of Beijing Municipality and the Beijing Municipal Higher People’s Court, respectively).

Burden of proof

Whether other evidence is required to corroborate the genuineness of online evidence touches upon the issues of the allocation of the burden of proof and examination of evidence. In this regard, article 2 of the Several Decisions of the Supreme People’s Court on Evidence in Civil Procedures specifies that a party bears the burden of providing evidence supporting the facts on which its claims are based, or the facts on which its refutation of the claims of the other party are based.

Jiang Fengtao is the managing partner and Yang Cunji is a lawyer at Hengdu Law Offices