Evidence preservation in court parallels the investigation and collection of evidence conducted by the patent administration department. When a party faces challenges in obtaining certain evidence due to objective circumstances, they have the option to request evidence preservation from the court, utilizing similar methods for evidence collection. In practice, while the approval rate for evidence preservation requests may be relatively low, there are instances—particularly in cases involving process patent infringement and trade secret infringement—where plaintiffs who can present preliminary evidence have a significantly higher chance of obtaining court approval for evidence preservation.
In recent years, local courts, especially the three intellectual property courts in Beijing, Shanghai, and Guangzhou, have adopted a more proactive stance on evidence preservation to address the challenges of evidence collection. For instance, since its establishment, the Shanghai Intellectual Property Court has ruled in favor of 638 litigation preservation cases over the past three years.
Evidence preservation can be categorized into pre-litigation and in-litigation based on the timing of the application. Pre-litigation preservation tends to be more effective, as it allows for the possibility of obtaining evidence when the opposing party is unprepared. However, if pre-litigation preservation is overlooked, it is crucial not to miss the opportunity for in-litigation preservation, especially in cases where gathering sufficient evidence independently proves to be difficult.
When seeking evidence preservation, it is essential for the court to receive preliminary evidence that demonstrates the infringement and outlines the reasons for the need for such preservation. As previously noted, there are no definitive qualitative or quantitative standards for the level of prima facie evidence required. Generally, the more direct the evidence, the higher the likelihood of establishing infringement, which in turn increases the chances of the court granting the request for evidence preservation.
The need for evidence preservation becomes critical when the alleged infringer possesses the evidence of infringement, and the plaintiff does not have legal access to it. For example, in a patent infringement case concerning mold production, we effectively convinced the judge to authorize an inspection of the suspected infringer's factory. This enabled us to gather photographs and measurements of the production molds. Our request was supported by preliminary evidence, which included the suspected infringer's sales data and the claim that the production mold in question was vital for the manufacturing of the product.
Additionally, when a plaintiff applies for evidence preservation, he must submit a written request detailing the specific evidence they wish to preserve. Upon approval of the application, the court will implement interim measures as requested by the plaintiff. In practice, plaintiffs often seek preservation of both the evidence of infringement and the profits derived from it simultaneously. When the court considers the preservation request, it may approve parts of the application based on the circumstances. Typically, the court prioritizes the preservation of evidence related to the infringement itself, as this is crucial for the trial.
It is important to note that if a preservation request is made solely for evidence of profits from infringement, courts often decline to approve such applications. Therefore, the focus of evidence preservation tends to be on gathering the necessary evidence for determining infringement, which constitutes a comprehensive and effective strategy. If it can be established that the alleged infringer has engaged in infringing activities, but collecting evidence proves challenging, it is entirely feasible to request evidence preservation from the court based on preliminary evidence that supports the belief that infringement has occurred.
Tips for Court Evidence Preservation
There are notable similarities between the preservation of evidence in court and the investigation and collection of evidence through administrative means. When faced with actual cases, the decision on which route to pursue should primarily depend on the remedy that the rights holder intends to seek, whether that be through administrative or judicial channels. Each option has its own set of advantages and disadvantages, and the choice should be tailored to the specific circumstances of the case and the goals of the rights holder.
Additionally, as previously mentioned, the willingness of administrative agencies to conduct investigations and collect evidence can vary based on the established practices of local intellectual property offices. In some regions, all applications for investigation and evidence collection may be readily accepted, while in others, the opposite may be true. Therefore, it is beneficial to familiarize oneself with the consistent practices of the IP office in the area where the target company is located, as this knowledge can help gauge the likelihood of approval for such applications. In regions where there is a strong chance of approval, prioritizing administrative routes may be advantageous.
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