Intellectual Proprety (IP) litigation is not only an effective means of protecting the lawful rights and the interests of rights holders, but also an important method of securing and maintaining a competitive advantage, throttling competitors and even obtaining the IP of the other party. From IP judicial practice in 2016, it can be seen that Chinese courts spent great effort in mitigating the difficulties faced by plaintiffs in adducing evidence, improving the relief system and increasing the amount of damages awarded. IP lawyers also need to pay attention to, and take advantage of, these trends when formulating protection strategies for rights holders.
Application of adverse inference to mitigate difficulties in adducing evidence
The difficulty in adducing evidence is one of the most common obstacles preventing right holders from protecting IP rights in legal practice. In practice, even if the plaintiff has a court writ of inquiry in hand or has applied to the court for preservation of evidence, the defendant’s direct control over the evidence of infringement will still shackle the plaintiff’s efforts to adduce evidence. Accordingly, when the defendant refuses to provide or refuses to cooperate in providing relevant evidence, the plaintiff can invoke the rule of adverse inference in article 75 of the Several Provisions of the Supreme People’s Court on Evidence in Civil Procedures: “Where there are evidences to prove that a party possesses the evidence, but refused to provide it without good reasons and, if the other party claims that the evidence is unfavorable to the possessor of the evidence, it may be deduced that the claim stands.”
In the Dassault software copyright infringement case accepted by the Guangzhou IP Court, the defendant disrupted the court’s evidence preservation by using a power stoppage. The court, based on the fact that both of the two computers it had examined before the power stoppage had pirated software installed, inferred that all of the 65 computers on the site subject to preservation had the software installed on them. Although the above mentioned provision is not the most recent legislation, such overt application was rare in past software rights protection cases.
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Frank Zhu is a partner of Co-effort Law Firm. He can be contacted on +86 21 6886 5170 ext. 107 or by email at email@example.com