Even though there have been several improvements during the last years, it can sometimes be difficult or even impossible for a rights holder to obtain qualified evidence for an infringement. However, under Chinese law, rights holders can apply to preserve official evidence, which can provide a certain amount of relief.
According to a decision in 2015 at the Taizhou Intermediate Court the defendant, who exploited patents to manufacture and sell computer-aided textile machines had to stop the infringement and pay RMB 880,000 in damages plus a proportion of the litigation fees.
Previously the patent holder was unable to obtain a sample machine for evidence, since the vendor only sold them in large charges. Therefore the prosecutor asked the court to seal a sample machine at the defendant’s factory for infringement analysis. The court granted the application and the judge went to the factory to identify and seal a sample machine on site. For the calculation of the damages the court used the infringers’ production scale and the profits which the judge obtained from the government archive.
Article 81 of the Civil Procedure Law provides that, where evidence is likely to be destroyed or difficult to obtain in future, the party concerned can apply to the court to preserve evidence during the trial. In an emergency, the party concerned can apply for the evidence to be preserved before filing the lawsuit.
Although it is difficult to obtain an official evidence preservation ruling in some regions, it is possible. Under Article 5 of Judicial Interpretation 2015/4, there may be multiple jurisdictions over a patent dispute – namely, the court of the defendant’s domicile and the court of the place of infringement (ie, where the alleged infringing product is sold or manufactured or the alleged infringing process is conducted).
We suggest prosecutors to research which courts are more IP friendly to increase the chance on an official evidence preservation ruling.
China Intellectual Property Blog 