Research On The Evidence Rules In Damage Compensation Of Infringement Of Intellectual Property

It has always been a problem in the process of a lawsuit when the court invest and assessthe amount of compensation for damage caused by infringement of intellectual property(IP).The key to assess the amount of compensation caused by damage is to find out the fact oflosses suffered by the IP right owner or the profits which the infringer has earned through theinfringement, while the key to find out the fact lays on the collection and identification of theevidence. Solving the problem of collecting and identifying evidence will be helpful to investand assess the amount of compensation for damage caused by IP infringement.In response, this paper analyses the characteristics of evidence of damage compensationin IP infringement, points out the difficulties of collecting and identifying evidence in IPlawsuit, believes that by using evidence rules it will broaden the ways of collecting evidenceand enhance the abilities of identifying evidence, which will also contribute to the courts inassessing the amount of compensation caused by infringement. Comparing and referencingthe legislative and judicial experience from other nations or districts, this paper divides theevidence rules into collecting rules and identifying rules and studies both of them. Theevidence collecting rules include evidence preservation and evidence discovery, which will behelpful to overcome the difficulties of evidence collection and gather more key evidence inthe lawsuit. The evidence identifying rules include obstruction of evidence、preponderance ofthe evidence and the expert assistant. Among them, the obstruction of evidence rule imposesnecessary legal duties on the evidence holders who are reluctant to provide evidence, ensuresthe effect of evidence preservation and evidence discovery; Preponderance of the evidencerule lessens the proven standard and emphasizes the judges use discretionary power to assessthe amount of damage compensation; Expert assistant can cover the shortage of judicialexpertise, enhance the accuracy and credibility of judicial expertise conclusion, provideprofessional referential opinions for judges. The author believes that judiciary will graduallybecome a leading way in protecting intellectual property, and it is the only way to preventintellectual property infringement and keep the rights owners’ emotion in creating anddeveloping IP by reasonable amount of damage compensation. By strengthening the study onevidence rules and using the evidence rules to invest the amount of damage, it will be usefulto solve the difficulties in assessing damage compensation caused by IP infringement andexert the effect of judiciary protection in IP development.