By Luo Yanjie
In an earlier Microsoft’s case of right protection (Note: the link is in Chinese), the company applied for the evidence preservation to the court after they found the piracy using by others, demanding the perpetuation covering the pirated Microsoft software installed in the computers in the defendant’s business place. The application was accepted by the court, who thereafter sealed and checked the computers claimed and found each apparatus has been installed at least 5 types of software of Microsoft. Whereby, Microsoft gains the compensation of more than 1 million yuan in the following trials.
It could be concluded from the last case that most infringement evidences are in the business place of the defendant in IPR cases, especially the copyright, patent trials, and that makes them unavailable to the plaintiff. Wherein, the participation of the court may increase the success rate of the plaintiff’s right protection and achieve a multiplier effect. Now we would like to introduce the way to apply evidence preservation in IPR trials in China:
I. The condition of evidence preservation
There is no detailed legislation on the application conditions for the evidence preservation, and we only see a general regulation in the Civil Procedure Law that
“in the condition of the evidence can be lost or difficult to obtain, the participants in the proceedings may apply to the people’s court for evidence preservation, the people’s court may also take evidence preservation procedure.”
While, it does not define what is “can be lost” or what is “difficult to obtain”. But through the previous cases and the author’s experience, it general should meet the following conditions to start the preservation of evidence:
1. The preliminary evidence to the infringement
In IPR cases, the collection of preliminary evidence is a head aching task to the right owner, among which those in the commercial piracy using cases are the toughest ones, because no one shall be so foolish to admit the piracy using while there’s no access to investigate the infringement. In practices, the right owner tends to first communicate with the company and hope the confession by it or ask for help to administrative departments.
2. Evidences preserved must be related to the case
Most evidences are consistent with the requirements, such as the preserved articles are usually the infringing products or tools manufactured against the patent in patent cases; trademark counterfeiting products in trademark cases; and computers installed pirated software in copyright cases.
3. Unavailable to the right owner
This is the direct cause for right people to apply for evidence preservation. For the evidence hold by defendants, if right people can not get it, the court shall initiate the evidence preservation program.
II. The procedure of evidence preservation
Although the law provides that courts can actively start an evidence preservation procedure, in practices, it is generally launched on the application. The details of the application are as follows:
1. the application period
The Civil Procedure Law provides that suit participants can apply for the preservation during the trial which however shall not be made later than 7 days before the end of the evidence period. But according to the Copyright Law :
For the purpose of preventing the act of infringement and under the circumstances where the evidence could be lost or is difficult to obtain afterwards, the copyright owner or copyright-related right owner may apply to a people’s court for evidence preservation before he initiates an action.” (both the Trademark Law and Patent Law have such provisions)
Therefore, the right owner is entitled to apply for the evidence preservation before the trial, which will no doubt be more strictly examined.
2. The way of preservation
As provided in Article 24 of Several Regilations on the Civil Trial Evidences by the Supreme People’s Court:
“the people’s court can making seizure, photographs, recording, video, replication, identification, inspection records and other methods according to the specific circumstances when preserve evidences”
On the application of evidence preservation, the applicant shall clearly state the methods of preservation.
The evidence preservation procedure by the court is actually the intervening of the public power in civil cases to some extent. Once the infringement could not be established at the end, it could cause the wrong preservation, such as mistakenly sealing the defendant products or computers, which will lead to the losses of the preserved party; therefore a guarantee is necessarily ordered by the court. So the court needs to request the applicant to provide a guarantee. At the same time, the law also provides that if the applicant refuses to provide a guarantee, the court may dismiss the application.
As for the guarantee amount, we see the regulations in similar property preservation systems as regulated in Opinions on Several Issues concerning the Application of Civil Procedure Law by the Supreme People’s Court that a full guarantee shall be submitted, while no similar or same regulation concerning the preservation rate on the evidence preservation. By the practices, some courts will only require about 30% of the property as the guarantee, while most courts will demand a 100% guarantee. At the same time, there are a lot of professional guarantee companies in China to provide the aid in guarantee.
Other recommended posts on our website:
1. The Actual Term of Trademark Registration in China
2. How to Apply for the Trademark Record in China Custom
3. How to improve the success rate of trademark registration in China?
4. Matters for Attention in Trademark Refusal Review in China
5. Introduction of China’s Legal System of Trademark Renewal
6. Introduction on the Regulations concerning the Capital Contribution in IPR or Domain Name in China
7. The Copyright Registration in China Could Be FREE?
8. China Copyright Protection Term Longer than EU’s?
9. Matters for Attention in the Patent Preliminary Injunction Application in China(I)
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