The Research Of Burden Of Proof In Manufacturing Process Patent Infringement Disputes

Patents can divide into product patents and process patents. In infringementactions, it is easy to provide evidences by the patentee to prove that the infringerproduces, uses, sells, promises to sell or imports the patented goods, for the productpatents. However, for the process patents, the process can only be used but not beproduced, sold, promised to sell or imported, and the act of using would be kept secretby the infringer, which is not easy to be revealed. So, it is difficult to collectevidences with legitimate and reasonable means by the patentee, which causes theoverweight burden of proof of the patentee. Therefore, to balance the legitimateinterests between the patentee and the infringer, the patent laws of various countriesprovide the rules of shifting burden of proof of manufacturing process patent, and ourcountry is no exception. For this reason, The research of burden of proof inmanufacturing process patent infringement disputes is significant for the developmentof the patent law system in our country.This dissertation comprises three chapters. The Chapter One is the summary ofthe principle of shifting burden of proof. In this chapter, the concept and the legalbasis of the shifting burden of proof are analyzed, which is based on the relevanttheories of shifting burden of proof. Then, the principle of distribution of evidentialburden in patent infringement disputes is analyzed theoretically, which combines thecharacteristics of the patent infringement cases.The Chapter Two is the analysis of the situation and insufficient of the rules ofshifting burden of proof in manufacturing process patent infringement disputes. In this chapter, firstly, the infringement elements and the burden of proof in infringementdisputes of process patent are analyzed, which is based on the characteristics of theprocess patent, then, the discussion of shifting burden of proof in manufacturingprocess of new product is extended. After that, the legislation evolution of shiftingburden of proof in manufacturing process of new product is studied, and the existingproblems of the active rules of shifting burden of proof in manufacturing process ofnew product are indicated.The Chapter Three is the suggestions to perfect the principle of shifting burdenof proof in manufacturing process disputes. In this chapter, firstly, the suggestions toperfect the rule of shifting burden of proof in manufacturing process of new product isprovided, which suggests that confirm the definitions of “new product” and “sameproduct” and the distribution of evidential burden. Then, the suggestions to establishthe rules the improve the protection of manufacturing process of “traditional product”,which uses the rules of TRIPS and the USA Patent Law35U.S.C for reference andcan provide the sufficient protection of manufacturing process of traditional product.Finally, related articles to improve the protection of trade secrets of infringer aresuggested, which can balance the legitimate interests between the patentee and theinfringer.