In the civil litigation, if one party has evidence to prove that the other party holds some evidence, but the latter refuses to surrender such evidence to the court, the court may construe that the hidden evidence is in disfavour of the evidence hider.
In the Canton Fair of April 2011, Zhongshan JCAN exhibited a meat grinder infringing SEB’s design patent. SEB arranged on-site notarization in the fair as well as notarized purchase of infringing samples after the fair, filed a civil lawsuit before Zhongshan Court in June 2011, and applied to the court for official preservation of evidence to support the allegation that J-CAN was a professional producer of the infringing meat grinder, and that J-CAN owned the relative moulds.
In July 2011, the court judge inspected JCAN’s factory, found J-CAN was indeed a professional meat-grinder producer, identified four meat grinder samples infringing SEB design patent, and observed many sets of moulds for meat grinders. But JCAN refused to help the judge to identify which set of moulds was for the sued product, even when the judge explained to it of the negative consequence if it refused to surrender the moulds for inspection.
In the oral hearing, J-CAN alleged that a third party had supplied the infringing samples to it. J-CAN also denied ownership of the moulds. But it did not provide any supportive evidence to support the allegations.
In February 2012, Zhongshan Court made a decision against J-CAN. Besides finding infringement and awarding damages for the infringement, the court deduced that J-CAN should have owned the moulds for producing the infringing product, and ordered it to surrender the relative moulds for destruction.
Article 75 of “Several Provisions of the Supreme People's Court on Evidence in Civil Procedures” provides that
“Where there is evidence to prove that a party possesses the evidence but refuses to provide it without due cause, if the other party claims that the evidence is unfavorable to the possessor of the evidence, the court may deduce that the claim is sustainable”.
In J-CAN’s case, the Court applied this rule to construe that J-CAN owned the moulds for the infringing product, despite the fact that it refused to surrender them. This construction of evidence by Rule 75 is very encouraging to IP right owners because it greatly lessens the burden of proof on the side of the IP owners.