Distribution Of Burden Of Proof In Method Patent Infringements

There are two levels in distributing burden of proof in method patent infringements:the general rule and the special rule. The former is for the general conditions, it’s also the general rules of civil burden of proof, while the latter is for specific items of new product manufacturing method patent infringements only. There are corresponding provisions in the civil procedure law, Patent Law, other relevant laws and judicial interpretations. The general rule of civil burden of proof has been turned into clearer with the changes of the civil procedure law and its judicial interpretation. Interpretation of the Law of the People’s Republic of China Civil Procedure Law by the supreme people’s court(hereinafter referred as the civil procedure law judicial interpretation) determined the general rule of civil burden of proof in our country for the first time. At the same time, the special rule of burden of proof in specific method patent also has been changed, due to the changes of Patent Law and its judicial interpretation. Its scope of application has been narrowed, and it has been changed from a unified regulation to a distinguish treatment. In 1984 the first Patent Law set the specific rule of burden of proof in patent infringements for the first time. After that, Patent Law changed for times, two of which caused changes of the specific rule. In 1992 it changed for the first time, since then, method patent infringements and no-method patent infringements were treated differently. Till the year 2000, special rule of burden of proof in method patent infringements-- reversion of burden of proof was established, it keeps the same since then.However there are also some issues in distributing the burden of proof in method patent infringements: difficulties when prove infringements, facts of damage, something about “new product”. These problems directly lead to the imbalance of the burden of proof between the right holders and the accused in the process of patent infringement litigation.It’s partly because of the method patent infringements are highly hidden. The most important reason is the related law is insufficient: definition of “products directly obtained by unscientific” is not proper, methods to calculate the loss is indistinct, the burden of proof for “new product” is unscientific. By analysis the issues in distributing the burden of proof in method patent infringements comprehensively, this paper tries to put forward proposal for them.