On The Perfection Of Evidence System In Intellectual Property Litigation

Compared with common civil lawsuits, intellectual property right lawsuits have special requirements during the judicial process of proving, owing to the types of the evidence to be used in intellectual property lawsuits are varied and new, the evidence itself contains more professional knowledge and technology, and difficult to save, as well as the evidence collection process needs more technical methods. Since there is no special governing law in this respect, intellectual property right cases are facing some substantial problems when applying general rules of evidence to them.This paper begins with the features of intellectual property right lawsuits and the evidence rules, then it analyzes some typical problems exiting in the intellectual property right evidence system, at last the paper gives some opinions and suggestions on dealing with these problems. This paper is divided into four parts.The first chapter is the overview of the intellectual property right evidence system exiting in China right now. Since the intellectual property right object is intangible, professional and innovative, the intellectual property right lawsuits involve in many new kind cases and more professional technologies, the tort of intellectual property right is also more difficult to discover. These features make the evidence system of intellectual property right lawsuits is very different from the common civil procedure evidence system. The relationship between the evidence is more complicated and often involves in confidential message. Usually it needs more professional technical method to identify and that makes the righter is hard to prove the infringement. For all these reasons above, it shows us it's very important to choose an appropriate evidence system of the intellectual property right.The second chapter is mainly about the basic content of the intellectual property right lawsuits evidence system. It is composed by three aspects:the identification of the professional technology, the discovery of evidence in pre-trial, and the distribution of burden of proof. Because it's lack of special rules on intellectual property right lawsuits evidence system, there are many problems when apply the existing civil procedure rules. This chapter points out the common solution ways of those problems under law now, and then focus on three of them:expert witness, evidence exchange and inversion of burden of proof.The third chapter further analyzes the problems exiting in China intellectual property right lawsuits evidence system on the basic of Chapter 2. On expert witness system, this chapter analyzes the qualification and position problems about expert witness as well as the procedure of applying this system. On evidence exchange system, author focus on the problems about how to deal with exchanging of evidence referring to commercial secret, the absence of one or more parties, time limit of putting to the proof. On inversion of burden of proof, the chapter analyzes four kinds cases, which are tort of new production, not-new production, commercial secret and legal origin of intellectual property right. The problems and drawbacks mentioned in the analysis point out the future development direction of China intellectual property right lawsuits evidence system.The fourth chapter is the opinion and suggestion on the improvement of China intellectual property right lawsuits evidence system. Improving the initiation criterion, the restriction of qualification and the cross-examination procedure on expert witness system helps judges find out the technical dispute. Making evidence exchange system more flexible and being more cautious about evidence involving commercial secret help avoid surprised evidence and facilitate settlement. Expanding the area where inversion of burden of proof principle applies controlling judges discretion realize the substantive equality of two parties when they put to the proof.At last, this paper gives a brief summary on other contents, which is not mentioned in this paper but as important to the intellectual property right lawsuits evidence system as those mentioned.