An Empirical Study On The Burden Of Proof In Patent Infringement Litigation

There are still many defects in the burden of proof in patent infringement litigations.By analyzing,have found some questions in the distribution of the evidential burden in Chinese judicial practice.For instance,the distribution object focuses on whether there is any tort such as manufacture and use.The method of distribution is not clear enough and the content is simple and vague.In the aspect of adjudication rules,there are also some deficiencies.the adverse consequences,as the core content of the objective evidential burden,have not been clearly defined and emphasized in judicial practice.The obstruction of proof and transfer of the evidential burden are mixed,their boundary is not clear;The explanation of the evidential burden is insufficient,and reasoning in the judgment document is brief.There is also confusion over quotation of relevant laws and judicial interpretation.For solving the questions,the article put forward some improving measures as advises.In terms of the distribution,the basic rules should be improved.Classification of legal elements should be identified as the core principle and measurement of interests as the auxiliary principle.The evidential burden should be distributed according legal elements that include constitutive elements of patent infringement,substantive defense elements,and elements of compensation.In the judgment of the evidential burden,it should be made clear that the adverse consequence is the presumption that the facts do not exist.It should be identified that the obstruction of evidence and the evidential burden are different evidence systems.The difficulty of proof in patent infringement litigation can be solved by lowering the standard of proof or presumption.Once the burden of proof is confirmed,it should not be transferred.When quoting norms,should distinguish substantive law of patent and procedural law,and make pointed reference according to the relevant degree of specific norms.Judge should pay attention to explanation on the allocation and adverse consequences.The judgement document should entirely reason the whole process from the distribution to the adverse consequences.