Research On The Problem Of Burden Of Proof In Patent Infringement Litigation Of Product Manufacturing Method

Unlike product patents,the infringement of method patents is an internal process of production and implementation,and the obligee can not go deep into the process of production and operation to obtain evidence directly.At the same time,the process can not be reflected by the final product,so the tort has invisibility and concealment.Because of this,the current patent law introduces the inversion of burden of proof in the new product manufacturing method to solve the problem of proof in practice.However,even if the inversion of burden of proof is applied,the difficulty of proof in patent disputes over manufacturing methods remains unsolved,mainly in the field of "new products",where it is difficult for patentees to complete the initial proof to prove the existence of "new products",and then to initiate the inversion of burden of proof,and to turn back to the general distribution rules,it is difficult for patentees to prove the existence of infringement.In addition,in the field of product manufacturing method infringement,the burden of proof is generally distributed without distinguishing the connotation of the burden of proof,which leads to self-contradiction in the application of the distribution rules of the burden of proof.At present,the special rules of burden of proof in patent infringement of manufacturing methods are very limited.In practice,only under the existing burden of proof distribution system,combined with evidence preservation,judge discretion to distribute the burden of proof and other ways to solve the problem of proof in cases.However,the effectiveness of evidence preservation is limited,the burden of proof is improperly assigned,and the existing rules to promote evidence investigation have shortcomings.Jumping out of the case and exploring an effective relief system of burden of proof from the perspective of civil litigation,we can see that the existing relief system of burden of proof in China is not enough to solve the problem of proof in patent infringement of manufacturing methods.After analysis,this paper considers that the problem of proof in the patent field of manufacturing methods mainly lies in the application of the theory of burden of proof and the imperfection of the system of burden of proof,which leads to the identification of "new products" and "tort".Starting from the present situation of proof,based on the basic theory of burden of proof,and on the basis of analyzing the mitigation system of burden of proof both inside and outside the country,this paper puts forward the solution to the problem of burden of proof in the field of product manufacturing methods.This paper holds that the difficulty of proof in the patent field of product manufacturing methods is fundamentally caused by the imperfection of the existing burden of proof system.In view of the essence of this dilemma,optimizing the burden of proof system is the fundamental way to solve the problem of fact determination in product manufacturing method infringement cases.This paper draws lessons from and analyses the mitigation system of burden of proof in foreign countries,and holds that the obligation of case clarification has incomparable advantages over other systems in the case of proof in patent lawsuits for product manufacturing methods.Therefore,this paper proposes to improve the burden of proof system by introducing the system of exceptional case clarification obligation,so as to solve the identification of "new products" and "tort".And from the clear use of conditions,clarify the legal consequences and expand the scope of application to elaborate the specificconstruction of the system.In addition,to optimize the burden of proof system,we need to build relevant supporting measures.This paper mainly balances the interests of the obligee and the accused infringer by introducing the third-party expert cross-examination,and guides and regulates the operation of the case interpretation system by strengthening the interpretation obligation of judges.