[Patent Talk] China's New Powerful Evidence-Collection System for Patent Infringement Cases and Its Implications

This is a column contributed by our patent attorney Taeyoung Lee to Etoday on June 22, 2021. It introduces the powerful evidence-collection system recently adopted in China and discusses its implications.

[Patent Talk] China's New Powerful Evidence-Collection System for Patent Infringement Cases and Its Implications

KIPO announced that a powerful evidence-collection system took effect in China this month. Under the amended Chinese Patent Law, for serious patent, utility model and design infringement disputes, officials of the Chinese patent office may investigate the site of infringement, question the parties and so on, determine whether infringement has occurred and order the infringing conduct to stop.

This Chinese evidence-collection system also applies to foreign companies operating in China, so Korean companies that have entered or plan to enter China need to pay attention. In particular, note that officials may, on their own authority, investigate the site where infringement occurred or question persons involved in the case, and the parties may not refuse or obstruct such investigation or questioning.

China's early implementation of such a powerful evidence-collection system is expected to accelerate the introduction of the "K-Discovery system," a Korean-style evidence-collection system that KIPO is considering. Some are concerned that the K-Discovery system could lead to a flood of global patent litigation, but it is expected to be introduced eventually in order to address the uneven distribution of evidence and to increase the value of Korean patents.

A point that deserves particular attention regarding evidence collection is the handling of digital documents, because by their nature digital documents can be copied without limit and spread widely regardless of location. The United States currently operates the most powerful evidence-disclosure system, known as discovery, and even in patent infringement suits in the United States, Korean companies must produce digital documents such as e-mails and product-related documents of their Korean headquarters relating to the infringing conduct.

The amended Chinese Patent Law provides that the site of infringement may be investigated, which is basically interpreted to mean that computers and other devices at the site may be examined using forensic techniques, but extending from this...

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