Interpretation of the Several Provisions of IP Evidence

Borsam IP
BORSAM IP———————————————
On November 16, 2020, the Supreme People’s Court of the People’s Republic of China issued the Several Provisions of the Supreme People's Court on Evidence in Civil Procedures Involving Intellectual Property Rights (hereinafter referred to as the Several Provisions of IP Evidence). The judicial interpretation was implemented on November 18, 2020. There are 33 articles in total, and it specifies in detail the burden of proof, evidence preservation, judicial appraisal, and how to take confidential measures for evidence involving trade secrets or other business information that need to be kept confidential in civil litigation of intellectual property rights, aiming to resolve the outstanding issues related to evidence in civil litigation of intellectual property rights. This article will introduce some of the provisions of the judicial interpretation.

1. Burden of proof

Article 2 of the Several Provisions of IP Evidence, on the basis of “Burden of proof borne by claimant”, further provides a detailed provision that a People's Court may request the parties to provide relevant evidence based on the parties' claims and facts to be proved and their holding of evidence and ability to present evidence, among others. It further clarifies the proof responsibility of the party who holds the evidence, and urge all parties to actively provide evidence to ensure that the People's Court can accurately ascertain the facts of the case.
Article 7 acknowledges the effectiveness of dormant evidence collection and entrapped evidence collection. But the right holder is not allowed to induce others to commit infringement.
Article 24 involves the Order for Production of an Evidence. It further clarifies that the People's Court has the power to order the opposing party to provide evidence under its control with rulings and other legal documents, including not only the documentary evidence in the judicial interpretation of the Civil Procedure Law, but also other types evidence.
2. Evidence preservation

Evidence preservation refers to measurements taken by a People's Courts to protect the evidence to ensure its probative force under circumstances where the evidence may be damaged, lost, or difficult to obtain in the future. Evidence preservation is one of the important ways of obtaining evidence in civil litigation, especially for civil litigation involving intellectual property rights. Articles 11 to 18 of the Several Provisions of IP Evidence provide corresponding provisions on the review of the application for preservation of intellectual property evidence, preservation measures, consequences of obstructing the preservation of evidence, legal liability for destroying the evidence that has been preserved, participants in the evidence preservation, making of evidence preservation records, and relief of the respondent, to further standardize the evidence preservation procedures.
3. Judicial appraisal

The Civil Procedure Law clarifies that appraisal can only be conducted on specific issues of facts, not legal issues or non-special issues of facts. In the field of intellectual property, judicial appraisal is an indispensable part of finding out the facts. Article 19 of the Several Provisions of IP Evidence enumerates the specific issues of facts that can be entrusted for judicial appraisal.
Article 20 of the Several Provisions of IP Evidence stipulates that, with the permission of the People's Court or the consent of both parties, the appraiser may entrust other institutions to test and appraise the testing matters involved. However, he is still responsible for the final appraisal opinion. This is taking into account that sometimes after accepting the commission, the appraisal agency finds that some of the testing items may exceed the scope of its capabilities, and a part of the testing content can be outsourced to scientific research institutes, laboratories, universities, etc. with corresponding technical conditions.
4. Confidential evidence

According to the Civil Procedure Law and its relevant judicial interpretation, all evidence cannot be used without cross-examination. The same is true for evidence that needs to be kept confidential. Where the evidence involves business secrets or other business information that needs to be kept confidential, this article 26 of the Several Provisions of IP Evidence stipulates the method of cross-examination of confidential evidence, and restricts the persons who contact the confidential evidence and how to use it. The court shall take protective measures for confidential evidence, such as requiring litigation participants to sign a confidentiality agreement and make a confidentiality commitment, ordering not to disclose, use, or allow others to use it for purposes other than the case. Subject to the application of the parties, the court may also limit the scope of persons who have access to the evidence.
The formulation of the Several Provisions of IP Evidence has further improved important systems such as evidence submission, evidence preservation and judicial appraisal. It is helpful to reduce the burden of proof by right holders, and promote the construction of intellectual property civil litigation system that encourages and guides the parties to actively and actively provide evidence. Its promulgation and implementation play an important role in solving the "Difficulty to prove" in intellectual property civil litigation, reducing the cost of protecting rights, improving the quality and efficiency of intellectual property protection, and promoting the creation of a market-oriented, legalized, and international business environment.