1. How to obtain evidence of patent infringement
1. Collect evidence by yourself or entrust a lawyer to investigate and collect evidence
Due to the highly professional nature of intellectual property cases, it is difficult for the right holder to obtain evidence on his own and to accurately grasp the direction and scope of evidence collection. Lawyers specialize in legal work and provide legal services to the society. Lawyers not only have rich legal knowledge, but also have rich case-handling experience and skilled litigation skills, and can make appropriate choices for the parties at different stages of litigation. Generally speaking, it is much more convenient for lawyers to investigate and collect evidence than for litigants, and the scope of evidence collection is also more extensive and precise. In judicial practice, judges often treat lawyers differently and provide more convenience.
2. Apply to the notary office for evidence preservation
One of the statutory businesses of the notary office is " Preserve evidence.” Notarized evidence has the effect of being presumed to be true. Article 69 of the "Civil Procedure Law" stipulates: "The people's court shall confirm the validity of legal acts, legal facts and documents that have been notarized. However, unless there is contrary evidence that is sufficient to overturn the notarized certification." The effect of the preservation of evidence by the notary public is equivalent to the preservation by the court in accordance with its authority. Before litigation, the parties can make full use of the notary public to collect and preserve evidence, which is an effective measure to prepare for litigation.
3. Apply to the court for pre-litigation evidence preservation
Laws and judicial interpretations stipulate pre-litigation evidence preservation , shall be handled in accordance with its regulations. This establishes a legal basis for parties or interested parties to apply to the court for pre-litigation evidence preservation.
4. Apply to the People's Court to obtain evidence
The Sixty-fourth of my country's "Civil Procedure Law" Article 1: Evidence that the parties and their agents cannot obtain on their own due to objective reasons, or evidence that the People’s Court deems necessary to hear the case, shall not be subject to the People’s LawThe hospital should investigate and collect. Based on this, parties often file an application for evidence collection while filing patent infringement, trademark infringement and copyright infringement lawsuits. The evidence collected is usually divided into three categories:
First, preserve the products accused of infringement;
Second, investigate the financial accounts of the units accused of infringement in order to determine the amount of compensation;
Third, obtain evidence of the alleged infringer’s infringement. According to the Civil Procedure Law and relevant judicial interpretations of the Supreme Court, the court has two modes of operation in investigating and collecting evidence: First, it actively investigates and collects evidence in accordance with its authority. When it comes to facts and related procedural matters that may be detrimental to national interests, social public interests or the legitimate rights and interests of others, the court should take the initiative to investigate and collect evidence ex officio without the parties needing to apply for evidence. The second is to obtain evidence based on the application of the parties.After the scope of the court's initiative to obtain evidence ex officio has been narrowed, parties' applications for evidence investigation have become increasingly important. In the absence of a timely application for evidence investigation by the parties, the court will generally not take the initiative to investigate the evidence. After a party files an application for evidence investigation, whether the court initiates an investigation and evidence collection mechanism depends on the court's review and judgment. Only when the application filed by the party meets the scope of the court's evidence collection, the court is obliged to investigate and collect evidence. Otherwise, the court should reject the application. application.
Parties should pay attention to two points when applying for court investigation and evidence collection:
First, the scope of evidence applied for investigation; It must comply with legal circumstances;
Secondly, this application must pay attention to the time limit for proof.
The court usually takes photos of the allegedly infringing products of Yi Photo, or records the technical features of the alleged infringing products, and then Easily accessible books and trademarks are seized and extracted through methods such as seizure. However, financial account books of alleged infringers are often extremely difficult to obtain due to obstruction or concealment by the infringers.
5. Apply for administrative investigation and evidence collection
Chapter 5 of my country's "Patent Administrative Enforcement Measures" There are special provisions for investigation and evidence collection. In the process of investigating and handling cases, the patent management department may investigate and collect relevant evidence in accordance with its authority as necessary. Can check and copy contracts, account books and other relevant documents related to the case; interrogate the parties and witnesses; take measurements and take photosConduct on-site inspections through , photography and other methods. If a manufacturing method patent is suspected of infringement, the patent management department may require the person under investigation to conduct an on-site demonstration. If a product patent is involved, samples can be taken from the allegedly infringing product.
No matter which method is used to collect evidence, objectivity must be the premise. Only objective and true evidence can be probative. Never tamper with or fabricate evidence, otherwise you will be held legally responsible. The patentee finds that his patent rights have been infringed by others, and after confirming that his patent rights are valid and the patent infringement is established, he can start the next step. The so-called next step is to collect evidence first.
The evidence that the patentee needs to collect generally has the following aspects:
1. Relevant Evidence of the circumstances of the infringer. As the saying goes, know yourself and the enemy and you will be victorious in every battle. Therefore, the patentee should first know the exact name, address, business nature, registered capital, number of employees, business scope, etc. of the infringer. It is important to understand these situations and what strategies the patentee should adopt to deal with patent infringement.
2. Evidence of infringement facts. The prerequisite for patent infringement is that there must be infringement. Therefore, evidence proving that the infringer has actually committed acts that infringe patent rights is crucial in the process of dealing with infringement. Evidence in these areas includes physical objects, photos, product catalogs, sales invoices, purchase and sales contracts, etc. of the infringing items.
3. Evidence regarding damages.
The patentee may seek damages from the infringer. The amount of damages claimed may be the losses suffered by the patentee. However, the patentee must provide evidence to prove that due to the other party's infringement, the sales volume of its patented product has been reduced, or the sales price has been reduced, as well as other losses such as extra expenses or less income.
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