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Research On The Distribution Of The Burden Of Proof In The Intellectual Property Infringement Litigation And Its Solution

Posted on:2019-05-15Degree:MasterType:Thesis
Country:ChinaCandidate:T K ShuiFull Text:PDF
GTID:2416330596952491Subject:Law
Abstract/Summary:PDF Full Text Request
Intellectual property rights are different from ordinary civil rights,and their objects are non-material.Intellectual property infringement suits are characterized by elusive infringement and evidence bias,and evidence related to infringement and damage results are mainly controlled by the infringer and the rights holder is faced with proving difficulty in litigation.It has brought uncertainty to the determination of the facts of the case,which has affected the judicial protection of intellectual property and has become the bottleneck of intellectual property rights protection.In its essence,the unreasonable distribution of the burden of proof in the current IP infringement litigation is the main reason for the right holder to “proving difficulty”.Reasonably applying the rules of the burden of proof to adjust the distribution of the burden of proof,emphasizing the behavioral and consequential burden of proof of the accused infringer helps to fundamentally solve the problem of “proving difficulty”.At present,the special rules on the burden of proof for intellectual property litigation regulations are very limited.In the proof of infringement,only the “new product” method of manufacture applies the burden of proof inversion.Although judicial interpretation allows judges distribute burden of proof in specific cases,but there are no clear and detailed discretionary standards,resulting in practical difficulties in application.In addition,in the proof of damages,the spoliation of evidence is ruled in both the Civil Procedure Law and the Intellectual Property Law,but the inconsistency in the applicable conditions and legal consequences in differentregulations has caused contradictions in the application of laws.In view of the above-mentioned issues of the burden of proof in IP infringement litigation,this article comprehensively uses case analysis method,legal interpretation methodology,and literature analysis method to study the scope,preconditions and legal consequences of the application of inversion of proof burden in IP infringement lawsuits.Sorts out the relevant jurisprudence of the judiciary and analyzes the causes of the phenomenon of “proving difficulty”.Based on precedents,study the issues raised in this paper and proposes relevant suggestions for improving the distribution of burden of proof in intellectual property infringement litigation.This article believes that the current IP infringement litigation follows the principle of distribution of the burden of proof in civil lawsuits.It also holds a cautious view on the extension of the statutory application of the burden of proof inversion.It also argues that the spoliation of evidence rule helps to adjust the distribution of burden of proof in individual cases.According to the peculiarities of intellectual property rights,and the burden of proof and the insufficiency of ability of presenting evidence faced by the right holders,the application of the special distribution rules of the burden of proof in the intellectual property litigation should be strengthened.In the application of the rules,the interests of both parties should be fully considered.In terms of the issue of proof of infringement,it advocates the use of discretionary distribution of the burden of proof,and apply rigorous examination of the premise.Where the right holder provides prima facie evidence and is able to prove the possibility of its claim,the burden of proof is determined on the basis of the circumstances of the evidence;Regarding the issue of proof of damages,on the basis of the existing spoliation of evidence,according to the interpretation of the system,the legal consequences of the burden of proof in intellectual property damage compensation should be presumed that the parties' claims established.At the end of this paper,the solution paths are proposed,to flexibly apply the “highly probable”standard in the proving,so as to guide the judge's discretion in the distribution of burden of proof in the case,clarify the conditions and legal consequences for the spoliation of evidence,and strengthen the judge's right to interpretation and secret protection measures to protect the proving.
Keywords/Search Tags:Intellectual Property Infringement Litigation, Burden of Proof, Distribution of Burden of Proof, Spoliation of Evidence
PDF Full Text Request
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