Website Notarization and Electronic Evidence Preservation
Website notarization represents a formal process where a notary public utilizes specialized hardware and software tools to capture, record, and timestamp the real-time content of web pages and sequences of online actions (such as keyword searches, navigation through hyperlinks, form submissions, and data input). This process generates an authoritative notarial deed that authenticates the captured digital content and meticulously documents the exact methodology used to obtain it. Given the inherently volatile nature of online content, where pages can be altered or removed in moments, prompt preservation is critical to capturing a legally defensible snapshot.
The choice between notarization and timestamp authentication depends heavily on the complexity of the required evidence and its intended purpose.
Timestamp Authentication, issued by qualified third-party Trusted Timestamp Authorities, offers a technically sound, faster, and generally cheaper method for preserving the existence and cryptographic integrity of a single digital file (like a static PDF or JPG snapshot of a specific webpage) at a precise moment. It serves well for basic preservation of discrete items. However, it lacks the procedural rigor and human oversight needed for complex, interactive online evidence sequences. For evidence requiring a documented chain of actions – such as searching for a company name on Baidu, navigating to its official website through an organic result link, accessing a specific product catalogue page, interacting with dynamic technical specification viewers, filtering product listings, viewing dated promotional claims or demonstrable sales records, or downloading brochures and manuals – formal website notarization remains demonstrably superior.
- The notary personally observes the entire interactive process in real-time, methodically documents each step within the deed, and formally certifies the authenticity of the captured sequence of web states. For large volumes of interconnected information or intricate user journeys necessary to establish infringement patterns, notarization’s inherent robustness and judicial acceptance typically justify its higher cost and administrative overhead. Timestamping may suffice for preserving standalone, static digital artifacts of lower probative criticality.
- The strategic value of online evidence preservation is multi-dimensional: Webpages displaying detailed product listings, downloadable technical specifications, price lists, real-time inventory indicators, and functional “Add to Cart” or quotation request interfaces serve as powerful prima facie evidence of “offering for sale” under Article 11 of the Patent Law, a distinct infringing act. Data points visible online – advertised sales quantities over time, aggregate customer review metrics, listed export destinations, and demonstrable marketing claims regarding market share, adoption rates, or unique technical advantages – provide courts with indispensable context for assessing the scale, duration, geographical scope, and commercial impact of the infringement, directly informing quantum calculations during damages assessment.
- Crucially, when direct notarized purchase proves infeasible due to product nature or infringer obstruction, strategically preserved online evidence often provides the indispensable initial evidentiary foundation. Corporate websites, industry platforms, and e-commerce listings frequently contain detailed textual descriptions of manufacturing processes, CAD schematics or videos of proprietary machinery, explicit marketing claims about unique technical features protected by the patent, or internal operating manuals accessible through links.
While inherently less conclusive than direct physical examination or internal documents, a well-preserved collection of such digital evidence can establish a sufficiently compelling prima facie case. This often triggers a court’s willingness to grant evidence preservation orders (under Article 84 Civil Procedure Law) compelling production of internal materials or site access, or to judicially shift certain evidentiary burdens onto the defendant. Establishing this threshold prima facie case is indispensable for initiating and sustaining litigation in complex technology sectors.
Executing effective website notarization demands meticulous technical attention to detail to ensure admissibility and persuasive weight.
Common pitfalls that undermine evidentiary value include: ensuring all captured pages clearly display the full, functional website URL in the browser address bar throughout all screen captures or screen recordings.
- The preservation records must comprehensively document the specific pathway taken to access the target information (e.g., starting from a public search engine query for relevant terms, clicking a specific organic result link, versus typing a direct URL). Failing to capture this navigation sequence creates authenticity vulnerabilities; ensuring the preservation clearly identifies the content owner through visible “About Us” sections, verifiable copyright notices, consistent use of corporate branding/logos on product pages, or capturing domain registration information (WHOIS records) whenever possible. Merely displaying a product online is necessary but insufficient.
- Preservation efforts must capture affirmative evidence demonstrating active commercial exploitation – functional “Buy Now” or “Add to Cart” interfaces, visible pricing structures, customer review sections, dated promotional campaigns emphasizing availability, downloadable order forms, or verifiable sales histories/rankings if accessible via public interfaces.
- Undertaking a simulated purchase (dummy transaction) under notarial supervision, capturing all steps and generated electronic communications (order confirmations, payment receipts if part of the process) substantially strengthens evidence of an offer for sale evolving into a sale; ensuring critical technical details directly relevant to the asserted patent claims (dimensions, material compositions, component interactions, flow diagrams for processes, chemical formulas) remain fully visible, legible, and unaltered in the preserved captures.
- Low-resolution images, clipped diagrams, or illegible labels severely compromise utility for infringement mapping; and similar to physical evidence collection, retaining IP litigation counsel deeply familiar with the patent claims, prosecution history, and specific infringement theories to strategically plan the target URLs, required user interactions, and evidentiary sequences before engaging the notary is crucial.
Counsel must draft specific preservation protocols tailored to capture the infringing aspects most damaging to the opposing position and ensuring the finalized notarial deed provides a watertight, unambiguous record devoid of procedural ambiguities.
Procedural Mechanisms to Overcome Evidentiary Hurdles
Recognizing the significant imbalance faced by patentees seeking evidence held exclusively by infringers, Chinese procedural law offers key interventions:
Evidence Preservation Orders (Article 84, Civil Procedure Law): Upon formal application by a patentee demonstrating necessity, competent courts possess the authority to proactively collect or secure evidence deemed at high risk of future destruction or inaccessibility. This mechanism proves exceptionally potent for accessing evidence located within infringer-controlled premises (e.g., internal production machinery, confidential process documentation, sales ledgers, server logs, moulds).
The applicant must provide a credible evidentiary foundation satisfying the court on four key points: precise identification of the evidence sought (e.g., specific machine model/serial number within a plant, identifiable production logbook for a given timeframe); demonstrable relevance to the substantive patent infringement claims being asserted; compelling proof of urgency justifying pre-trial intervention (e.g., corroborated intelligence suggesting active evidence destruction plans, machinery relocation or decommissioning schedules, perishable nature of evidence like chemical batch samples); and crucially, provision of credible preliminary evidence plausibly indicating infringement (typically fulfilled through the pre-litigation investigation methods described herein – notarized samples, preserved website evidence, dated exhibition photos, industry intelligence reports, confidential witness statements). The success rate correlates directly with the precision of the preservation request and the persuasive strength of the preliminary showing.
Statutory Burden Shifting Frameworks:
New Product Determination (Article 66, Patent Law): This provision specifically addresses the near-impossible burden confronting process patent holders. Where the patentee satisfies two statutory prerequisites: the patented process is demonstrably used to manufacture a “new product” (a contested term increasingly interpreted by courts as meaning a product that was not identical to products known in the prior art at the patent’s priority/filing date); and the alleged infringer produces a product that is identical to the product directly obtained by the patented process; then, the legal burden shifts to the alleged infringer to prove their manufacturing process differs materially from the patented process.
The core difficulty resides in the patentee’s initial burden to credibly prove the “newness” of the product. The Supreme People’s Court’s Interpretation has clarified that “new product” does not necessitate absolute global novelty akin to patentability but signifies a product differing substantively from the prior art landscape as of the relevant date. Discharging this initial burden demands robust evidence, potentially including comprehensive freedom-to-operate analyses contrasting the product against pre-patent date prior art references, expert affidavits on product differences, industry recognition testimony, or technical analysis reports establishing non-obvious differences. Meeting this burden unlocks the critical procedural shift.
Defendant’s Accounting Disclosure Obligation: Where a patentee has successfully proven infringement through initial evidence but the precise quantification of damages (e.g., infringer’s profits, patentee’s lost sales, reasonable royalties) depends on financial records or sales data exclusively controlled by the infringer, courts may formally order the infringer to produce relevant accounting books, sales contracts, and distribution records.
This authority stems from provisions promoting litigation fairness and deterring concealment. If the infringer refuses compliance without legitimate justification (e.g., claiming non-existence of records, national secrecy), or provably provides falsified or materially incomplete records, courts possess discretionary authority to rely heavily on the patentee’s proposed damages calculation and supporting evidence when assessing quantum. The Supreme People’s Court in its Interpretations emphasizes that adverse inferences against non-producing parties are appropriate in such scenarios. This mechanism functions primarily as a tool for quantifying established infringement rather than proving infringement occurrence but becomes strategically vital where defendants deliberately obscure sales volumes, geographic reach, or profit margins post-liability finding.
Conclusion: Crafting an Evidence-Centric Litigation Strategy
The formidable evidentiary burden confronting patentees in Chinese infringement litigation necessitates proactive, strategically sequenced, and forensically meticulous evidence collection. Reliance on core pillars like legally defensible notarized purchases and comprehensive electronic evidence preservation remains paramount. Yet, their effectiveness hinges upon thorough pre-filing investigation via qualified resources, bespoke strategic planning calibrated to the specific product domain (especially within complex B2B environments), and continuous, expert legal oversight throughout the evidence lifecycle.
Overcoming the acute challenges inherent in proving infringement of process patents or securing evidence tightly held by infringers demands deep comprehension and proactive tactical deployment of available statutory and procedural tools: targeted evidence preservation applications and statutory burden-shifting mechanisms when factually and legally justified. Constructing a compelling infringement narrative, underpinned by admissible, methodically gathered, and forensically robust evidence starting from the earliest suspicion of infringement, represents the optimal path to navigating China’s demanding “Evidence is King” paradigm. Achieving meaningful enforcement of patent rights requires sustained diligence, investigational creativity, and unwavering legal precision throughout every phase of the enforcement campaign within this dynamic and strategically vital jurisdiction.