The Application Of Spoliation Of Evidence Rule In The Determination Of Damages In Intellectual Property Infringement Litigation

The application of spoliation of evidence rule is considered to be an effective way to solve the difficult problem of producing evidence of damages in intellectual property,it is more likely to realize the accurate calculation of the actual loss of the right owner and the infringement benefits of the infringer by making an unfavorable presumption to the person who spoils the evidence rules,that is,the application of spoliation of evidence rule is contribute to the calculation of the amount of damages in the intellectual property infringement litigation in China.However,the elements and legal effects of spoliation of evidence rule provided by Trademark Law and the 2nd Interpretations on Patent Law are not explicit,resulted in lots of problem in juridical practice such as the public widely confuse the relation of spoliation of evidence rule and the existed methods in calculating the damages in intellectual property area,and it is difficult to apply the rule in cases of infringement of intellectual property rights,and there are lots of different legal effects in practice inconsistence with the law.On that account,this paper is based on cases of infringement of intellectual property rights in juridical practice,and combined the general theory in civil procedural law to analysis those problems.According to the particularity of the calculation method of intellectual property rights damages,this paper briefly introduces the existed method in current legislation provisions and the current situation,and clarifies the difference of spoliation of evidence rule and the reversion of burden proof.The spoliation of evidence rule is not a new calculation method of intellectual property rights damages,but a kind of judicial technology comply with the experience rule,and it can realize the substantial justice by presumption.The spoliation of evidence rule can be used in the method of actual loss and infringement benefits of infringer,and can be specially used in the method of reasonable license fees.However,it cannot be used in the method of statuary damages.Through the comparison between the Trademark Law and the 2nd Interpretations on Patent Law with The Judicial Interpretation of Civil Procedure Law on the legal elements of spoliation of evidence rule,this paper clarifies that only the right holder proves the evidence under control of the infringer is irreplaceable to the amount of damages can be deemed to it has adduced preliminary evidence,and the right holder shall make a clear claim.Besides,business secret is not a warrant for refusing to provide evidence under the control of the infringer,but the court should do a good job confidentiality measures.Finally,the spoliation of evidence rule applying to the field of intellectual property shall observe the procedure as follows:(i)application of the right holder(ii)debate(iii)interpretation of court(ⅳ)decision of court.This paper analyzes the different legal effects of the rule in the judicial cases of the intellectual property litigation,and summarizes as follows:First,the presumption of the claims of the plaintiff;Second,to determine the amount of damages with reference to the claims of the plaintiff and the provided evidence;Third,to determine the amount of damages according to the statutory maximum limit;Fourth,the presumption of a huge profit,beyond the statutory limit of compensation.The legal effects provided in the Trademark Law and the 2nd Interpretations on Patent Law shall be construed as the presumption of the claims of the plaintiff,it mainly shows that the claims of right holder that the content of those financial documents under the control of the infringer is true,then determining the amount of damages combined with other evidence provided by the right holder,and the other legal effects should not be adopted.Finally,estoppel should be prohibited in order to maintain process stability.