In short, Evidence Solidification means a legal act raised by a party to a legal agency for obtaining and keeping relevant evidences to maintain the probative force of the same.
In practice, the party usually takes the following approaches.
- To petition a notarial agency for pre-litigation evidence preservation
The evidences notarized by the notarial agency have the effect of being presumed as true evidences in the trial. With respect to patent infringement disputes, the party can make a request to the notarial agency, prior to the legal proceedings, for verifying, obtaining, collecting, keeping and consolidating the evidences which might be lost or with difficulties in the future.
For example, in the witness of a notary, to purchase products suspected infringing; to make notarization on materials and/or webpages on which products or methods suspected infringing are publicized; to make notarization on materials displayed in an exhibition and relevant to products or methods suspected infringing.
- To petition the court for pre-litigation evidence preservation
In accordance with provisions in Article 67 of the Patent Law of the PRC, under the circumstances where the evidence might be destroyed or where it would be difficult to obtain in the future, the patentee or the interested party may petition the court for evidence preservation before instituting legal proceedings.
The petitioner shall provide the following materials for evidence preservation:
- Patent relevant documents, including: patent certificate and specification of announcement, payment receipt for the current annual fees or duplicate copy of the patent register.
- Evidences which prove the petitioner as the patentee or the interested party.
For the patentee, it is required to submit a certificate for capacity as a subject. For the interested party, a patent license contract or a certificate for legal successor of the patent right are necessary, in order to prove that he/it is entitled to request the evidence preservation. In addition, the interested person is also required to prove his/its right of appeal.
- Preliminary evidences which prove that the infringement claimed by the patentee or interested party is established, stating that it is high probability that the respondent (the suspected infringer) carries out the infringement acts.
- Information about evidences to be preserved, including: name and place of evidences to be preserved, and the possibility that the evidences might be lost or difficult to be obtained.
According to the practice, if the patentee or interested party requests the evidence preservation, and provide a guarantee voluntarily or upon the request of the court, in most cases, the request for preservation will be approved by the court.
- To petition the court for obtaining evidences
Generally, the petition for obtaining evidences is initiated at the same time with the legal proceedings for the purpose of giving consideration to both of efficiency and effectiveness.
Under the request of the party, the court can take products suspected infringing, investigate the financial books of the suspected infringer or obtain other evidences proving that the suspected infringer carries out the infringement acts. The measures of investigation and obtaining evidences taken by the court include: taking pictures of products suspected infringing, recording the technical features of the products suspected infringing and detaining or take away relevant books or matters, etc.
- To petition an administrative authority for obtaining evidences
Under the request of the party, the local intellectual property bureaus can check and copy contracts or books, etc., relevant to the infringement, interrogate the involvers and witnesses, and conduct the on-site inspecting, etc.