IPR Litigations, especially those against infringement of process patents or trade secrets, have long been regarded as a daunting legal action by IPR holders to protect their legitimate rights and interests, because of, as quoted by many, the “difficulty in proof, high cost and indecent compensation”. However, this has changed since Chinese courts are now more inclined to award their judgment in favor of IPR holders.
Firstly, the court has strengthened application of judicial preservation for judgment enforcement purposes with regard to property, evidence, as well as injunction ordering or restraining certain act of the defendant. The plaintiff is more likely to be granted pre-trial judicial preservations or injunctions if applied as long as they can provide prima facie evidence to support their claim and put up an adequate bond.
Secondly, as to process patent or trade secret infringements, the court has shifted the burden of proof to the defendant when the following two conditions are both satisfied: (1) the plaintiff is unable to obtain all evidence to prove infringement after having taken all reasonable efforts and (2) probability of infringement of an IPR on the part of the defendant can be established based on known facts and common sense. If the defendant fails to otherwise produce evidence under these circumstances, infringement will be presumed to have occurred.
Thirdly, the more remedial measures are available to the plaintiff. (1) If the plaintiff produces prima facieevidence capable of proving that the related accounting books and data are in the possession of the defendant, the court may order preservation of evidence for these accounting books and data, based on which the amount of damages may be established; (2) in the event that the defendant fails to provide or otherwise provides false accounting books and data, the court may establish the amount of damages based on the claim and evidence rendered by the plaintiff; (3) reasonable costs, including lawyer’s fee, incurred by the plaintiff against the infringement will be calculated separately for compensation; (4) stoppage of infringement will be imposed on more occasions; and (5) a higher amount of damages will be imposed on those repeated or malicious infringers.
It is no doubt that by way of the above-mentioned actions the court has make it much less difficult for IPR holders to seek judicial remedies in tort against infringement and significantly brought down the cost in doing so. Also the right holder may be better compensated in an IPR lawsuit due to this development. Therefore, once an IPR holder becomes aware of an instance of IPR infringement, it may be more willing to seek protection by suing the infringer rather than anxious about the prospect of losing the suit.