Who's responsible? Reversing the burden of proof


Yin Xintian

Who's responsible? Reversing the burden of proof

Article 64 of China's Civil Procedure Law says a party shall be responsible for providing evidence to support its own propositions. But it's not always clear how far that's applicable in IP cases, as Yin Xintian explains.

Also known as “he who asserts, proves”, Article 64 is one of the fundamental principles of civil proceedings in China.

Based on this principle, a patentee who accuses another party of infringing his patent shall have to prove (i) what patent he owns and what is the status of that patent; (ii) what the alleged infringer did; and (iii) that the subject matter of the alleged infringing activity falls into the scope of protection for the patent.

When a patented process for obtaining a product is involved, however, it is often difficult for the patentee to prove that the alleged infringer is manufacturing the product using the patented process, as it is unlikely that the patentee can enter the alleged infringer’s premises to collect evidence.

burden of proof, SPC, China Civil Procedure Law, China Patent Law