Research On The Burden Of Proof Of Legal Source Defense Of Patents

In patent infringement litigation,the defense of legal source is an important defense for the bona fide infringer to exempt from civil liability for compensation.At the same time,the defense of legal source has the function of maintaining the security of market transactions.There are differences in the distribution of the burden of proof of the subjective elements of the defense of legitimate sources in the practical field,forming the opposition between the three views of the obligee,the infringer and the bona fide presumption.In view of this difference,it is suggested to reconstruct the allocation rules of the burden of proof of subjective elements based on the substantive law,drawing on the model of the single independent law of the object of extraterritorial patent rights,and combining the characteristics of the three objects protected by the patent law.For the objective elements,the infringer who advocates the defense of legal sources has weak evidentiary ability,the court has strict examination of the evidence provided by the plaintiff,and the applicable standard of proof for the proof of the objective elements is high.In fact,the infringer bears a heavy burden of proof for the objective elements of the legitimate source defense,which makes it difficult for the legal source defense system to realize the institutional value of protecting the bona fide infringer and maintaining the transaction security.In view of this problem,this thesis believes that in the process of proving the objective elements,the methods of reducing the burden of proof,such as prima facie proof,reducing the standard of proof and increasing the plaintiff’s obligation to clarify the case,can be applied to reduce the burden of proof of the objective elements of the bona fide infringer.