How to obtain evidence in intellectual property infringement cases

Evidence is the soul of litigation. In intellectual property infringement disputes, the most important issue is the identification of the actor accused of "infringement". However, due to the particularity of intellectual property rights, the evidence of infringement is extremely difficult to obtain or even if it is obtained, it is considered invalid and cannot be used as effective evidence for finalization. The problems that should be paid attention to in the process of obtaining evidence in judicial practice are summarized as follows. I. Method of obtaining evidence 1. Collect evidence by oneself and entrust a lawyer to investigate and collect evidence. Because the parties have a better understanding of their rights, product characteristics, technical characteristics, industry scope, etc., it is more targeted to obtain evidence by themselves. Lawyers' investigation and evidence collection is more professional and wider than that of clients. Therefore, it is suggested to combine the two basic methods and complement each other. 2. Apply to the notary office for evidence preservation. Article 59 of the Civil Procedure Law stipulates: "The people's court shall confirm the validity of notarized legal acts, legal facts and documents. However, unless there is enough evidence to the contrary to overturn the notarial certificate. " Notarized evidence has the effect of presumption of truth. The effect of preservation of evidence by notary organs is the same as that of preservation of evidence by courts ex officio. Therefore, if the parties can make full use of the notary office to collect and preserve evidence before litigation, it should be an effective measure to make good preparations before litigation. 3. Apply to the court for evidence preservation before litigation and apply to the court for evidence preservation during litigation. The evidence obtained by applying to the court is usually divided into three categories: one is to preserve the accused infringing products; Second, investigate the financial books of the alleged infringement unit to determine the amount of compensation; Third, collect the evidence of the alleged infringer's infringement. The usual measures taken by the court are to take photos of the accused infringing products, or to record the technical characteristics of the accused infringing products, and to seal up and extract the books and trademarks that are easy to retrieve. The financial account books of the accused infringer often take the form of suddenly sealing up the financial office and ordering it to hand over the account books. 4. Apply to the administrative organ for investigation and evidence collection. In the process of investigating and handling cases, the departments engaged in management can investigate and collect relevant evidence according to their functions and powers as needed. You can consult and copy contracts, account books and other relevant documents related to this case; Questioning the parties and witnesses; Conduct on-site inspection by means of measurement, photography and video recording. Where the patent right of manufacturing method is suspected of being infringed, the administrative department may require the respondent to make a live demonstration. Where a product patent is involved, samples may be taken from the products suspected of infringement. 5. Apply for customs investigation and evidence collection. According to the Regulations of People's Republic of China (PRC) on Customs Protection of Intellectual Property Rights, which came into effect on March 1 2004, intellectual property rights holders can request the customs to implement intellectual property protection. If the intellectual property right holder finds that the suspected infringing goods are about to be imported or exported, he may apply to the customs at the place where the goods enter or leave the country to detain the suspected infringing goods, and keep relevant evidence with the help of the investigation and determination made by the customs on whether the detained suspected infringing goods infringe intellectual property rights. 6. Use the relevant materials investigated by the investigation organ as evidence. The Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Infringement of Intellectual Property Rights, which came into effect on February 22, 2004, further clarified and appropriately lowered the conviction and sentencing standards of intellectual property crimes and expanded the scope of investigation organs. Therefore, in the process of handling criminal cases suspected of infringing intellectual property rights, investigation organs can also find out a lot of evidence that is beneficial to litigation. Second, the problems that should be paid attention to in obtaining evidence 1. The subject, process and content of collecting evidence should be legal. The physical objects and invoices obtained by the parties themselves or by entrusting others to purchase infringing copies by way of ordering or on-site trading can be used as evidence. The evidence obtained by a notary from the other party in the manner specified in the preceding paragraph and the notarial certificate issued in the process of obtaining the evidence shall be taken as evidence, unless there is evidence to the contrary. At present, the law does not explicitly prohibit the method of "trap evidence collection", but this method violates the principle of good faith. Once it is supported, it will damage the normal market trading procedures and endanger the establishment of market credit. Therefore, in the software copyright infringement cases of Founder Company of Peking University, Honglou Computer Research Institute v. Beijing Gaoshu Tian Li Company and Beijing Gaoshu Technology Company, the court refused to recognize this. 2. Pay attention to the correlation between the evidence and the correlation between the evidence and the defendant. The key point is to determine the relevance between the infringement and the defendant, that is, to judge that the accused infringement is committed by the defendant. The plaintiff's proof standard must reach the level that even if the defendant denies that the act is his doing, other reasonable doubt factors can still be ruled out, otherwise the plaintiff's claim cannot be established. For example, the plaintiff thinks that the infringing product is produced by the defendant according to the defendant's name printed on it, but the defendant denies this fact. The plaintiff should be able to provide the invoice issued by the defendant when purchasing new products, and the relevance can be confirmed. 3. Pay attention to the objectivity of the evidence. Only objective and true evidence has probative power. When taking evidence on your own, you should pay attention not to delete the obtained evidence at will, even if there are some parts that have nothing to do with the case, you should keep it as it is, otherwise the evidence will lose its objectivity and its probative power will be greatly weakened. When obtaining evidence by notarization, the content of preservation should be as comprehensive as possible. For example, computer software preservation should include source programs, object code programs, technical specifications, development documents, etc. , the running environment can also be retained. As far as possible, various forms of evidence collection should be adopted in a safe way. For example, printing a page or storing it on a disk, the notary records the whole process of obtaining evidence (including network connection, website address, etc.). ), and you can also use the camera to shoot the whole process of evidence collection. What needs special attention is that the evidence obtained through notarization should be sealed and kept in the notary office, and the court should go to the notary office to extract the evidence. Three. The main content of obtaining evidence The evidence that the plaintiff should collect in a patent infringement case mainly includes: (1) the accused infringing product produced by the defendant, that is, the direct evidence of infringement. It is best to notarize the way and process of obtaining products and hand over the infringing products to the notary office for future reference. (2) If the product accused of infringement cannot be obtained due to objective reasons, indirect evidence that can be provided to the court can be obtained first, such as the advertisement of the defendant selling his product in newspapers and periodicals, the sales contract signed with others, etc., and then the direct evidence of infringement can be obtained through court preservation measures. (3) Find the evidence of selling the alleged infringing product, and the fact that the user still sells and uses the product knowing that it is an infringing product. (4) The plaintiff should compare the accused infringing product with the plaintiff's patent claim, and explain how its technical features fall into the protection scope of the plaintiff's patent, thus constituting an infringement of the plaintiff's patent right. It is better to be objective evidence such as documentary evidence, expert conclusion, audio-visual materials, rather than witness testimony. Because witness testimony is greatly influenced by subjective factors, it is difficult to explain technical problems orally to the court. The purpose of submitting this set of evidence is to prove that the defendant infringed the plaintiff's patent right and is the factual basis for ordering the defendant to bear civil liability for infringement. The evidence that the plaintiff should submit in a trademark infringement case mainly includes: (1) the accused infringing product (outer packaging and product description) produced by the defendant. (2) Selling invoices, sales contracts, audio-visual materials, etc. Products accused of infringement. It should be noted that in trademark infringement cases, because the protection scope of a trademark includes not only the words and graphics that constitute the trademark, but also the pronunciation, font and graphic meaning of the words, when the plaintiff cannot obtain the alleged infringing products, the invoices and contracts for selling the alleged infringing products can also be used as direct evidence. (3) Web pages, product advertisements and business cards currently used by enterprises. The purpose of submitting this set of evidence is to confirm in what form the defendant infringed the plaintiff's trademark right and the scope of infringement. The evidence that the plaintiff should submit in a copyright infringement case mainly includes: (1) alleged infringing works and copies, including books, newspapers, picture albums, calendars, etc. (2) Other carriers containing infringing works, such as web pages, outdoor advertisements, printed matter released to the public, other tangible products and commodity manuals containing infringing works, etc. At the same time, when submitting the above evidence, the plaintiff should explain in what form the infringing work infringes the plaintiff's copyright, such as copying, plagiarism, unauthorized adaptation, etc. The purpose of submitting this set of evidence is to prove the time when the defendant started infringing, the way of infringement and the degree of infringement (such as the circulation and printing times of infringing publications). Fourthly, the defendant should pay attention to the principle of "inversion of burden of proof" when obtaining evidence in patent infringement litigation. The first paragraph of Article 4 of "Several Provisions of the Supreme People's Court on Evidence in Civil Litigation" stipulates that in a patent infringement lawsuit caused by a new product manufacturing method invention patent, the unit or individual that manufactures the same product shall bear the burden of proof that its product manufacturing method is different from the patented method. According to the closeness of the parties to the evidence and the difficulty of obtaining the evidence, the law specifically stipulates the inversion of the burden of proof in such cases. V. Pre-litigation Evidence Preservation of Intellectual Property Rights "Several Provisions on the Applicable Law for Stopping Infringement of Patent Rights before Litigation", "Interpretation on the Applicable Law for Stopping Infringement of the Exclusive Right to Use Registered Trademarks before Litigation and Preserving Evidence" and "Interpretation on Several Issues Concerning the Applicable Law in the Trial of Copyright Civil Disputes" stipulate that in patent, trademark and copyright infringement cases, you can apply for pre-litigation evidence preservation. Evidently, evidence preservation before litigation exists in a large number of intellectual property infringement cases. After the implementation of preservation, the parties or interested parties shall bring a lawsuit within the statutory time limit. If no lawsuit is brought to the court, such preservation measures shall be lifted, or relevant evidence shall be destroyed or returned, and the losses caused shall also be borne by the applicant. In the process of evidence preservation before litigation, especially in computer software infringement disputes, it should be noted that: (1) When a court carries out evidence preservation on a computer, it should first know the number of home network cables and other computers connected to the computer, so as to cut off the connection between the computer and other computers or stop using them at the same time, and prevent the computer from being remotely controlled and modified. (2) When the evidence is preserved, it is best that both parties are present, and the preservation operation is carried out by the judge or the parties have no objection. (3) The preserved evidence shall be stored in the court equipment or the equipment provided by the parties, and checked by both parties. (4) The preserved evidence carrier shall be sealed by the judge on the spot. (5) Record the whole process in the record and sign it by both parties. (6) If possible, it is best to shoot the whole process at the same time. -Shenyang Intellectual Property Lawyer