To begin an investigation and gather evidence, the rights holder can submit an application to the patent administration department. The three methods previously mentioned are frequently employed by rights holders to independently collect evidence. However, there may be situations where, despite their diligent efforts, they encounter challenges in obtaining adequate evidence. In these instances, it may be advantageous to seek support from administrative or judicial authorities.

In China, rights holders dealing with patent infringement disputes have the choice to seek resolution through the patent administration department, which is usually the local intellectual property office or science and technology bureau, or to pursue legal action in court. It's important to highlight that many foreign entities may not be fully aware of the administrative option available to them and often default to the judicial process. However, in recent years, administrative channels have become increasingly popular due to their faster case resolution, resulting in a notable rise in disputes being settled through this method.

Under the Measures for Administrative Enforcement of Patents, if a party faces challenges in obtaining specific evidence due to external factors, they have the option to submit a written request to the patent affairs department for assistance in investigating and gathering evidence. The department will evaluate the request and decide whether to initiate an investigation and evidence collection. Furthermore, the department may proactively investigate and collect relevant evidence as necessary.

In practice, patent authorities in certain regions, such as Guangdong Province, generally accept written applications from parties seeking assistance with investigation and evidence collection. The patent office employs various methods for this purpose, including reviewing and copying pertinent documents, such as contracts and financial records related to the case. They may also conduct interviews with involved parties and witnesses, as well as perform on-site inspections utilizing measurement, photography, and videography techniques. If there are concerns regarding patent infringement related to a manufacturing process, the individual under investigation may be requested to demonstrate the process on-site. Additionally, the patent office may gather evidence through sampling, which could involve taking a portion of the suspected infringing product. In cases involving process patents, they may also collect samples of products believed to be directly produced using the patented process.

Consequently, if a rights holder is unable to gather sufficient evidence independently—such as in cases involving process patents or when they cannot access the allegedly infringing product—they may want to consider applying to the patent administration department for assistance with administrative measures and evidence collection.

In comparison to the judicial channel, the administrative channel has certain limitations. It does not allow for the claiming of damages, has a lesser deterrent effect on infringement, and the administrative agency may not be as equipped to handle complex patent infringement disputes as judges are. Consequently, right holders often prefer to pursue resolution through judicial channels, especially in cases that require significant attention or involve the pursuit of damages. 

In practice, some right holders may initially seek administrative law enforcement primarily to utilize the investigation and evidence collection procedures. They may later withdraw their application for administrative enforcement after gathering evidence and choose to file a lawsuit in court instead.

It is important to note that any evidence collected by the patent management department during on-site inspections will not be directly provided to the right holder. Instead, it will be documented in the case file and must be cross-examined during the oral hearing. Furthermore, if the parties decide to withdraw their application for administrative law enforcement, the relevant evidence will remain with the administrative agency and will not be shared with the right holder. Therefore, if a right holder wishes to use evidence obtained through administrative means in litigation, they must formally request the court to collect that evidence from the administrative agency.

Tips for Administrative Enforcement

When pursuing administrative law enforcement, it is crucial to provide prima facie evidence of any infringement. To effectively gather this evidence, I recommend employing the three methods previously discussed. However, please keep in mind that not all patent authorities may approve applications for investigation and evidence collection, and there may be cases where these investigations do not produce the anticipated outcomes.

Based on our experience with numerous administrative law enforcement cases concerning patent infringement disputes, we have noted that while many cases required on-site inspections for evidence gathering, some local intellectual property offices did not approve these requests. Furthermore, in instances where on-site investigations took place, no allegedly infringing products were found at the premises of the accused party. This may be due to various factors, including the lack of inventory resulting from production cycles or the presence of alternative production locations.

It is essential to acknowledge that investigations and evidence collection in administrative law enforcement are not without their limitations. Therefore, it is recommended to customize the approach according to the unique circumstances of each case.