Study On The Distribution Of Burden Of Proof In The Action For Infringement Of Process-patent

This dissertation takes ZhangXishui v. Nanan HongLai xiangfa foodstuffs factory. as abreakthrough point, stating the burden of proof of “new product”.the reversion burden ofproof and the influence of evidence preservation to the burden of proof.Part I gives a brief introduction to the burden of proof of “new product”. firstly, thispaper based on the basic principles of distribution in the burden of proof and standard of proof.the determination and standard of “the new products”and“the same product are defined”, thenanalyzing how to distribute the burden of proof about manufacturing method patent forinvention, for the new product, rules of the reversion burden of proof are obliged to obey. forthe non-newly product, the plaintiff shall bear the burden of proof to the defendant in a fact ordisbelieve.Part II is the responsibility to undertake about reversion burden of proof. In the newproduct’s patent infringement lawsuit, the burden of proof would be taken by the defendant,but it doesn’t mean that the plaintiff does not bear the burden of proof, the plaintiff must becompletely meet some of the facts, the burden of proof will be transferred to the defendantand the burden of proof would be converse between the plaintiff and the defendant.Part III is about the influence of the preserved evidence to the burden of proof. Theevidence to be preserved which is an indispensable means of proof in civil action also in thepatent infringement lawsuit. In the patent infringement lawsuit of involving new productmanufacturing method, the defendant may conceal the proof which goes against himself forself-protecting, which requires the plaintiff asking for the evidence preservation, thus thedefendant’s evidence was be mastered.Part IV gives some suggestions to perfect the burden distribution system in method patentinfringement.Mainly discusses the defects in legislation and judicature of the system andproposes the relevant improvement suggestions based on the defects.