Patent Infringement Proceedings The Burden Of Proof Allocation

In our legislative and judicial practice, patent infringement cases are based on the use of the general rules- "who advocates, who burden of proof," and the special rules-inversion of the burden of proof in the allocation of the burden of proof.This paper analyzes the concept, characteristics and type of patent infringement litigation; analyzes the scope of the burden of proof about the patent infringement suit, and the associated burden of proof allocation rules; describes the legislation of the burden of proof allocation on the patent infringement lawsuit.According to the special nature of patent practice, the general principles of patent infringement litigation attributable to the principle of fault liability; process patent infringement litigation attributable to the principle of presumption of fault responsibility, aimming at changing the disadvantaged position based on the difficult burden of proof from owner of the rights in proceedings and using a more comprehensive burden of proof rules. This paper analyzes the legal applicable conditions of inversion of burden of proof about the patent infringement, discusses some problems about the burden of proof of patent infringement litigation in practice, and the solutions proposed.This paper argues that the process patent infringement cases based on inversion of the burden of proof in the present stage, to a certain extent, improves the unequal burden of proof because of the information asymmetry from the parties in litigation, conducive to ensure justice in the procedure and expresses the progress of social law. However, the burden of proof of the "new product" as the legal applicable conditions of inversion burden of proof was not clearly defined by law, existing some disputes in judicial practice. In process patent infringement litigation for non-new products, if the burden of proof is still in accordance with the general allocation rules, which will make patent protection struggling. According to China's national conditions and characteristics of patent infringement litigation, we should carry out the allocation of the burden of proof about patent infringement lawsuits, under the premise of the practice with reference to some foreign mature action, improve and refine related provisions of the burden of proof of patent infringement litigation, and achieve as far as possible through legislation.