Study On The Difficulties Of Adducing Evidence In Patent Infringement Litigation And Its Countermeasures

The difficulties of adducing evidence of patent infringement litigation has been puzzling the legal practice and academic circles.In recent years,the state has put forward the reform goal from the height of top-level design of solving the difficulties in adducing evidence of intellectual property,in which the difficulties of patent infringement litigation should be emphasized especially.Moreover,because of the particularity of object and the inclusiveness,method patent can also protect the new frontier technologies involving computer software,thus it deserves more academic attention.The key points of each part of the paper are as follows:The first part introduces both the domestic and foreign research status of adducing evidence of method patent infringement determination and the amount of compensation,at the same time,explains the research methods and innovation points of the paper.The second part focuses on the application of Burden of Proof to the infringement litigation of method patent.First of all,the paper discusses requirements of the method patent infringement litigation in the substantive law and procedural law,pointing out the relationship between the patent system and the civil procedure law.Secondly,it divides the method patent into traditional method patent and computer software method patent according to their occurrence time and illustrates the Burden of Proof respectively.The purpose of this classification is to arouse readers’ attention to the patent of computer software method.As a newly accepted method patent,it is necessary to clarify the patentability of computer software and the difficulties of adducing evidence of computer software method patent infringement litigation.The third part shows the difficulties of adducing evidence of the method patent infringement litigation and then analyzes its reasons.Firstly,the paper generally illustrates the difficulties of Proof Distance,the conflict in the defense of accused infringer and its technical secret protection.Secondly,it discusses the special problems of computer software method patent: hard to obtain Extended Protection due to unclear boundary of legal concept,and hard to be determined infringement in the occasion of separable infringement and cross-border infringement due to the rigid application of some law principles.Thirdly,it discusses the difficulties of adducing evidence to prove the amount of compensation of patent infringement and its causes: the completely statutory of Burden of Proof rule;proving of the amount of benefits relies heavily on the books of the alleged infringer.The fourth part introduces the countermeasures of the difficulties.In order to solve the problems of Proof Distance and the conflict of the two legal interests of traditional method patent infringement,it is necessary to refine Evidence Hindrance System and give full application to Research and Development Evidence.At the same time,it is useful to expand the concept of "product" in the sense of patent system to solve the problem of the absence of the Extended Protection,and it is good to resolve the difficulties of the determination of separating infringement and cross-border infringement by judging the involved legal principles materially: applying the theory of "two strata",distinguishing the factual judgment from the legal judgment.As to the problem of adducing evidence to prove the amount of compensation for patent infringement,the first countermeasure is to improve the proof rule system,including the introduction of autonomy of the proof rule,lowering the Standard of Proof and setting the counterpart standard of defense.The second countermeasure is to introduce Audit Evidence and Public Trust Evidence to prove the amount of benefit,lowering its high dependence on the book information of alleged infringer.