Requirements to be met for applying to the People's Court for evidence preservation in patent i

　　In patent infringement litigation, when determining whether to establish infringement, the people's court needs to compare the technical solution accused of infringement with the content recorded in the patent claims involved. The technical solution accused of infringement usually comes from the relevant evidence provided by the patentee, such as the product entity accused of infringement or the notarized information.

　　Evidence preservation refers to a measure taken by the people's court to protect evidence to ensure its probative power when evidence is likely to be damaged, lost, or difficult to obtain later. The significance of evidence preservation is to protect the probative force of evidence, so that the fact materials related to the case will not be unavailable or lose their probative effect due to the occurrence of relevant circumstances, so as to meet the needs of the parties to prove the facts of the case and the court to find out the facts of the case.

　　Article 81 of the Civil Procedure Law stipulates: "In the event that evidence may be lost or difficult to obtain in the future, the parties may apply to the people's court for evidence preservation in the course of litigation, and the people's court may also take protective measures on its own initiative.

　　In an emergency situation, where evidence may be destroyed or lost or may be difficult to obtain later, an interested party may, before bringing a lawsuit or applying for arbitration, apply to the people's court at the place where the evidence is located, the place where the respondent has his domicile, or the people's court that has jurisdiction over the case for evidence preservation. "

　　Article 73 of the Patent Law also stipulates the preservation of evidence before litigation: "In order to stop patent infringement, when evidence may be lost or difficult to obtain later, the patentee or interested party may apply to the people's court for evidence preservation according to law before bringing a lawsuit."

　　According to the existing legal provisions, the most basic condition for applying for evidence preservation is to meet the following requirements: only when the evidence may be lost or difficult to obtain in the future, can we apply to the people's court for evidence preservation.

　　In the case of the appellant Zhongtunqiao Company and the appellee Hengtian Company, Huachuan Company and other companies' infringement of invention patent [(2020) Supreme Law Zhiminzhong No. 2], the Supreme Law Zhichan Court further clarified and refined the applicable rules of the people's court for evidence preservation in patent infringement litigation. When the people's court reviews the necessity of evidence preservation, it generally needs to review the following aspects:

　　(1) Whether the evidence applied for preservation is related to the facts of the case and has strong probative force;

　　(2) Whether the evidence applied for preservation is lost or difficult to obtain in the future;

　　(3) Whether the applicant has exhausted reasonable and legal means of obtaining evidence and still cannot obtain relevant evidence.

　　The court of first instance ruled against the plaintiff Zhongtunqiao Company's request to order Hengtian Company, Dajian Company and Huachuan Company to immediately stop manufacturing, using, selling and promising to sell the products falling within the scope of patent protection involved and the claim for compensation. The court of first instance held that Zhongtunqiao Company should clarify the products being sued for infringement of invention patent when it filed an infringement lawsuit, By comparing the technical features recorded in the patent claims item by item, it can be determined whether the sued infringing products fall into the scope of patent protection. China Tunnel and Bridge Corporation accused Hengtian Company, Dajian Company and Huachuan Company of infringing their invention patent rights, but there was no specific product to be sued, so there was no way to compare and judge. China Tunnel and Bridge Corporation only accuses Hengtian Company, Dajian Company and Huachuan Company of infringement based on the website information, and does not support it.

　　The main reasons for the appeal of CTBC are: (1) The original judgment did not deal with the application for evidence preservation of CTBC, which seriously violated legal procedures. (2) The court of first instance did not deal with the application of CTBC for additional defendants, which seriously violated legal procedures. (3) The original judgment found that the facts were unclear, resulting in a wrong judgment. For comparison of patent infringement cases, the sued infringing products or production processes shall be compared with patent claims. In this case, China Tunnel&Bridge Corporation has provided the basic evidence related to the suspected infringement, and has fulfilled the burden of proof. Due to the special circumstances of the case, China Tunnel&Bridge Corporation cannot independently complete the proof. The court of first instance refused to preserve the evidence when CTBC provided preliminary evidence of infringement and application for evidence preservation. At the hearing, CTBC was required to compare the infringement with the notarial certificate, and then rejected the lawsuit request of CTBC on the grounds that the comparison of infringement with the notarial certificate did not conform to the legal provisions.

　　The Intellectual Property Division of the Supreme Court of the second instance held that evidence preservation is an important means to strengthen the parties' ability to provide evidence and promote the investigation of the facts of the case. The people's court shall review the application for evidence preservation in accordance with the law, support the application that meets the provisions of the law, and effectively reduce the burden of proof on the parties by taking appropriate preservation measures in a timely manner.

　　According to Paragraph 1 of Article 81 of the Civil Procedure Law of the People's Republic of China, evidence preservation by the people's court upon application is applicable to cases where evidence may be lost or difficult to obtain later. Because of the complexity of the infringement, especially in the field of intellectual property rights where the infringement is usually hidden, the people's court should, when measuring whether the situation of a case meets the legal requirements for applying for evidence preservation, make full use of daily life experience and logical reasoning based on the preliminary evidence and facts on record submitted by the applicant, and comprehensively review the relevance between the preliminary evidence on which the application for preservation is based and the facts to be proved On the basis of such factors as the necessity and feasibility of evidence preservation, make a comprehensive judgment on whether to allow the application for evidence preservation. In the trial practice, it is generally necessary to examine the following aspects whether evidence preservation is necessary: whether the evidence applied for preservation is related to the facts of the case and has strong probative force; Whether the evidence applied for preservation is lost or difficult to obtain in the future; Whether the applicant has exhausted reasonable and legal means of obtaining evidence and still cannot obtain relevant evidence.

　　In the application of evidence preservation, we should also pay attention to the following issues: evidence preservation belongs to the reinforcement of the parties' ability to provide evidence in specific cases, rather than replacing, exempting or transferring the parties' obligation and responsibility to provide evidence; When taking evidence preservation measures, attention shall be paid to the principle of proportionality, and full consideration shall be given to the impact of evidence preservation measures on interested parties. When necessary, the applicant may be required to provide guarantee; The scope of evidence preservation shall be based on the application of the parties and limited to the needs of ascertaining the facts of the case. In this case, our court comments as follows:

　　(1) There is a strong correlation between the preliminary evidence submitted by China Tunnel and Bridge Corporation and the facts of the alleged infringement;

　　(2) It is urgent and necessary for China Tunnel and Bridge Corporation to apply for court evidence preservation;

　　(3) It is feasible for China Tunnel and Bridge Corporation to apply to the court of first instance for evidence preservation.

　　To sum up, the court of first instance did not accurately apply the relevant laws and regulations on evidence preservation, and should have taken protective measures instead of taking them, which led to unclear identification of the basic facts of the case. The original judgment should be rescinded and the court of first instance should try again.