Study On The Proof Issues In Non-New Product Method Patent Infringement Litigation

In 2020,the Supreme Court issued "Regulations on Evidence in Civil Intellectual Property Litigation"（hereinafter referred to as "Intellectual Property Evidence Regulations"）,of which Article 3 is based on the difficulty of proving infringement of non-new product method patents and provides for the reduction of the burden of proof on the patentees,opening a new chapter to solve the problem of insufficient proof in non-new product method patent litigation.According to this article,after the patentees’ proof meets the three conditions（"identical product","reasonable effort" and "greater likelihood" of infringement）,the court may allow the defendant to prove that it was not so made.The promulgation of the Intellectual Property Evidence Regulations is expected to improve the situation of proof in non-new product method patent infringement litigation,but the standards for judging the two prerequisites of "reasonable efforts" and "greater likelihood" have not yet been clearly defined in the application of Article3.Why could court require defendant to prove the product was not so made is also unclear.To solve these problems,this article aims to clarify the prerequisites and consequences of the application of the Intellectual Property Evidence Regulations.The whole paper is divided into four parts:The first part provides an overview of the current situation of non-new product method patent infringement litigation in China,starting from the relevant legal norms and practical performance of product patent method infringement litigation.From the relevant legislation and the non-new product manufacturing method patent infringement cases in recent years,the regulations on non-new product manufacturing method patent infringement are relatively general,the proportion of defendants taking the initiative to present evidence of substantial significance in litigation is relatively small,and the court’s position on whether defendant should provide evidences if the plaintiff does not have sufficient evidence to prove that the defendant has committed an infringement is also relatively conservative.The second part is the research on the effect of the application of Article 3 of the Intellectual Property Evidence Regulations.The nature of the defendant’s proof is analyzed by the view that there is an allocation of the burden of proof or a shift of the burden of proof.And there is also the view that the defendant bears the burden of proof by means of factual presumption and proof of obstruction.Whether the defendant proves the case in the sense of this evidence or in the sense of counterevidence after the application of the article,and whether the defendant needs to bear the risk of losing the case when the truth or falsity is unknown.This article believes that in the absence of clear legal provisions,the reversal of the burden of proof cannot be applied.Moreover,the law does not impose the burden of proof on the defendant based on the presumption of fact or proof of hindrance,but rather reinforces the defendant’s burden of proof by emphasizing the judge’s temporary mind testimony on evidences,so that the defendant should provide evidences.The third part is the clarification of the applicable standard of "reasonable efforts".The current research in China has not yet explained the definition of "reasonable efforts" in the non-new product patent litigation,and the judicial practice has not paid enough attention to this element.In this paper,by comparing the obligation of "reasonable efforts" in contractual obligation and seeking reference to the relevant experience of the U.S.jurisprudence,it is believed that the "reasonable efforts" should be taken to a more lenient standard in the scope.It does not require the plaintiff to exhaust all means of proof and evidence investigation means.The fourth part is the clarification of the applicable standard of "substantial likelihood".It is the key element to determine whether the plaintiff can adapt the Article 3.But the judicial practice of it varies from the heaviest degree of "conclusive,sufficient" to "preponderance of the evidence",and then "prima facie evidence.By referring to the experience of U.S.jurisprudence and considering the legal effects of the application of Article 3,this paper defines the degree of "greater likelihood" as"slight likelihood".It will not bring the defendant excessive risk,and it is also more conducive.