4.6.1 Evidence rules and evidence preservation
With respect to issues concerning evidence in civil lawsuits, detailed provisions exist in the Civil Procedure Law, Interpretation of the Civil Procedure Law, Provisions on Evidence in Civil Procedures, and related judicial interpretations. These generally apply to patent-related civil cases. Based on the characteristics of patent cases, the Patent Law and related judicial interpretations also contain some special provisions related to evidence. The Supreme People’s Court has also formulated the Provisions on Evidence in Civil Procedures involving Intellectual Property Rights.
4.6.1.1 Provisions related to evidence in the Civil Procedure Law and related judicial interpretations
With respect to evidence, detailed provisions exist in Chapter VI (Articles 63–81) of the Civil Procedure Law and Part 4 (Articles 90–124) of the Provisions on Evidence in Civil Procedures. The latter provisions were issued in 2001 by the Supreme People’s Court and later amended in 2008 and 2019. This judicial interpretation currently includes 100 articles.
China has set up three internet courts: in Hangzhou, Beijing and Shenzhen. In the Provisions on the Trial of Cases by Internet Courts, Article 11 stipulates rules for internet courts in determining the authenticity of electronic evidence, Article 13 clarifies the general requirements and legal basis for the examination of evidence in online lawsuits, and Articles 14–19 stipulate rules regarding evidence in online lawsuits. In particular, Articles 16–19 make special provisions regarding blockchain evidence deposits.
The Rules of Online Litigation of People’s Courts came into effect on August 1, 2021. This judicial interpretation defines the scope of validity and determination criteria for blockchain evidence deposits.
4.6.1.2 Provisions related to evidence in the Patent Law
Regarding evidence, the Patent Law primarily covers the following four aspects:
- Article 66 paragraph 1 provides for the burden of proof in new product manufacturing process invention patent infringement cases (see Section 4.3.2.5.4 of this chapter for further detail).
- Article 66 paragraph 2 stipulates that people’s courts may ask the patentee or any interested party to furnish a patent right evaluation report made by the patent administration department of the State Council after having conducted a search, analysis and evaluation of relevant utility models or designs. This provision makes it clear that the nature of such patent right evaluation reports is evidence. Patentees, interested parties or alleged infringers may take the initiative to present such a patent right evaluation report.
- Article 71 stipulates that people’s courts may order an infringer to provide account books and materials related to patent infringement (see Section 4.4.3.4 of this chapter for further detail).
- Article 73 provides for the pre-litigation preservation of evidence. With respect to evidence preservation applied before the filing of a lawsuit or during a lawsuit, Article 81 of the Civil Procedure Law and Article 98 of the Interpretation of the Civil Procedure Law also provide relevant provisions.
4.6.1.3 The Provisions on Evidence in Civil Procedures involving Intellectual Property Rights
The Provisions on Evidence in Civil Procedures involving Intellectual Property Rights, while being an important component of the evidence system for civil lawsuits, has characteristics different from those of the traditional civil evidence system. In February 2018, the General Office of the Communist Party of China’s Central Committee and the General Office of the State Council issued the Opinions on Strengthening Reform and Innovation in Intellectual Property Adjudication, specifically raising the reform target of “establishing evidence rules in compliance with characteristics of intellectual property cases.” In November 2019, the two offices issued the Opinions on Strengthening the Protection of Intellectual Property Rights, specifically requiring the “strict regulation of evidence standards” and the “formulation of judicial interpretations on rules for evidence in civil lawsuits involving intellectual property.”
To strengthen the judicial protection of intellectual property rights and to practically address intellectual property right holders’ difficulties in producing evidence and the high costs of safeguarding rights and interests, the Supreme People’s Court formulated the Provisions on Evidence in Civil Procedures involving Intellectual Property Rights, which included 33 articles. This further improved the system of evidence on important issues such as the submission of evidence, obstruction to proof, evidence preservation, judicial appraisal, identification of extraterritorial evidence, the protection of trade secrets during the litigation process and so on. These provisions came into effect on November 18, 2020.