Evidence preservation involves asking a legally authorized body to obtain and retain relevant evidence so that its probative value is maintained. Four approaches are commonly used.

1. Notarial Preservation before Litigation

Notarized evidence is presumed authentic in proceedings. Before suing, a party may ask a notarial office to verify, obtain, collect and preserve evidence that may disappear or become difficult to obtain.

Examples include purchasing suspected infringing products in a notary’s presence, notarizing promotional documents or webpages for suspected products or methods, and notarizing relevant materials displayed at exhibitions.

2. Court-Ordered Preservation before Litigation

Article 67 of the Patent Law allows a patentee or interested party to seek preservation before filing suit where evidence may be destroyed or become difficult to obtain. The request should include:

Patent documents, including the patent certificate and published specification, and the current annuity receipt or a copy of the patent register.

Evidence that the applicant is the patentee or an interested party. A patentee must establish its legal identity. An interested party should provide a patent licence or evidence of lawful succession to the patent and demonstrate its standing to sue.

Preliminary evidence showing a high likelihood that the respondent has committed the alleged infringement.

Details of the evidence to be preserved, including its name, location and the risk of loss or later difficulty in obtaining it.

In practice, preservation requests are commonly granted where the patentee or interested party provides security voluntarily or at the court’s request.

3. Court Collection of Evidence during Litigation

For efficiency and effectiveness, a request for court collection of evidence is generally made when proceedings are filed. The court may obtain suspected products, inspect the alleged infringer’s financial records or collect other infringement evidence.

Measures may include photographing products, recording their technical features and seizing or taking away relevant account books or items.

4. Collection by Administrative Authorities

At a party’s request, local intellectual property authorities may inspect and copy contracts or account books relating to infringement, question parties and witnesses, and conduct on-site inspections.