A Study On Burden Of Proof In Infringement Of Product Manufacturing Process Patent

The Allocation of burden of proof is a key issue of civil litigation and plays an important role during the litigation process. The standard for allocating burden of proof is based on the deviation of legislative value and affects in a direct way the outcome of process patent litigation. The patentee of product manufacturing process is difficult to provide evidences of infringement during litigation due to the invisibility, disguise and perishablility of infringement evidence. Also because of the relationship between process patent and commercial secret, it is easy to disclose commercial secrets in the process of providing evidences and assuring the safety of them. In conclusion, there is great significance to study the burden of proof in infringement of product manufacturing process patent. This thesis carried out a preliminary study on burden of proof in infringement of product manufacturing process patent based on a combination of theory and Chinese legislation.The thesis consists of three parts. Part I deals with the characteristics and jurisprudence of process patent based on the theories of normative theory, dangerous domain and probabilism. Because of the characteristics of process patent, the traditional theory on burden of proof can not be the only criterion in infringement litigation and the traditional allocation of burden of proof is subject to adjustment in accordance with dangerous domain theory and probalilism. Part II deals firstly with the historical development of the Chinese legislation on burden of proof in process patent litigation and figures out that in different time the Chinese legislation adopted a different value on the issue. Part II secondly describes in details the criteria to allocate burden of proof, especially with respect to the'new products'and'same products'. With regard to inversion of burden of proof in new products process patent litigation, the burden of proof on the part of defendant and the skills to prove are given in this part. This part also discusses the requirements for taking measures to preserve evidence, the preliminary burden of proof of complainant and the circumstances under which the proof are enough to ensure judges to allocate burden of proof. Thirdly, Part II states and analyses the methods to protect commercial secret and legitimate rights of parties. Part III analyses shortcomings of Chinese legislation on burden of proof in process patent litigation and makes some suggestions thereto after a study on burden of proof in the Trips convention and US legislation.