China: Chinese Self Balancing Vehicle Maker Determined As Infringing: Evidence Collection Through Notary Public

Last Updated: 28 April 2017
Article by Feynman Zhiwen Liang

On September 20, 2016, a judgment was issued by Beijing IP Court on a patent infringement case, finding that the act of the defendant Changzhou Airwheel Technology Co., Ltd. ("Airwheel") has infringed the Chinese patent no. ZL201330266398.X owned by the plaintiff The Full United (Beijing) Technology Co., Ltd.("Full United") . Airwheel was ordered by the court to pay damages of CNY 400,000 (USD 60,000).

To be noted, the fight between the plaintiff and the defendant has also begun in the United States. Ninebot (Tianjin) Technology Co., Ltd., which is the subsidiary company of Full United (the plaintiff of Full United v. Airwheel above), filed an application of investigation before US International Trade Committee ("USITC"), alleging that Airwheel and the other 11 companies violated Section 337 by way of unlawful importation into the United States, selling for importation, and/or selling within the U.S. after importation certain personal transporters, components thereof, and packaging and manuals therefor that infringe one or more claims of U.S. Patent Nos. 6,302,230 and 7,275,607. On September 15, 2016, USICT decided to institute the section 337 investigation.

In the Chinese patent litigation Full United v. Airwheel above, evidence of infringement was successfully collected through notary public, forming strong backbone of the case and eventually leads to full victory. Evidence collection through notary public is an important way of collecting evidence in China. Unlike the United States and other jurisdictions, discovery procedure in which attorney may request information from the other party is not available in China, making it very hard to collect evidence for plaintiff. This is especially true for patent infringement litigation, characterized in hidden act of infringer.

Why not just buy the infringing product ?

Plaintiff and attorney may collect the evidence of infringement themselves and submit it before the court. However, evidence collected this way may be vulnerable in the cross examining proceeding in trial. For instance, the attorney may collect the evidence by buying the allegedly infringing product online and order it to be shipped to his office or home. Then the attorney may submit the evidence of product bought, the shipping receipt, the printed copy of the webpage of the infringing product to the court. The other party may be likely to object by claiming that the product was not shipped from him. Or he may claim the product was not produced by him due to the fact that the address on the package is different than his business address . He may even delete the infringing product webpage after he was served with the complaint and thus he may claim that the printed copy of the webpage submitted by the plaintiff is not from his website. One defect in the chain of evidence may lead to total failure in proving the infringement. Due to the uncertainties and weaknesses in evidence collection by the plaintiff or the attorney themselves, we usually do not recommend submitting the product directly bought by the plaintiff or attorney from the infringer.

Why collect evidence through notary public?

According to Some Provisions of the Supreme People's Court on Evidence in Civil Procedures

Article 9 The facts as mentioned below need not be proved by the parties concerned by presenting evidences:

...

6. The facts that have been proved in the valid notary documents.

The facts as mentioned in items 1, 3, 4, 5, 6 of the preceding paragraph shall be excluded if they can be overthrown by contrary evidences of the parties concerned.

The article above indicates that the strongest evidence that does not require proving include notary document, make it very hard for the other party to challenge in the cross examining proceeding in trial.

Type of evidence suitable for collection through notary public

For invention patent, plaintiff and attorney may file a petition to the notary office to notarize the act of manufacturing, using, selling, offering to sell and importing of infringing goods. In practice, the most frequent types of evidence collected through notary public is the act of offering to sell and selling.

(a) Offering to sell

According to Supreme People's Court's provisions on application of law in the hearing of patent infringement

Article 24 Offering to sell as referred in Article 1 and Article 63 of Patent Law of P.R. China means intention of selling the goods through advertisement, displaying in showcase, exhibiting in the trade show or any other means.

Displaying the infringing product in a webpage shall be deemed an act of offering to sell. If the infringer displays the product at issue in the website, plaintiff or attorney may consider collecting the evidence of the act of offering to sell through notary public . Plaintiff or attorney may file a petition to notary public to notarize the webpage of the infringing product. Upon acceptance of the petition, the plaintiff or attorney will be invited to the notary office to perform steps from opening of the web browser to opening of the webpage that contains the infringing product under the witness of the notary public. Every steps will be recorded in written form and every page will be copied and included in the notary document.

In the Full United v. Airwheel case mentioned above, Beijing Fangyuan Notary Office issued a notary document (no. 23501), notarizing the product description page, sales page, after sales service page, news page etc. that include any self balancing vehicle with model no. "S3" in www.airwheel.cn(Airwheel's official website), Tmall.com (one of the biggest B2C online market under alibaba.com in China ), taobao.com(one of the biggest C2C and B2C online market under alibaba.com in China) and jd.com (one of the biggest B2C online market in China ).

(b) Selling

If the product is available in the shop, plaintiff or attorney may file a petition before notary office to notarize defendant's act of selling the infringing product. Upon acceptance of the petition, a notary public will be assigned by the notary office to go to the shop on the designated date and time together with the attorney or the plaintiff to make the purchase of the product. Notary public is not required to indicate his identity as a notary public in the course of evidence collection. Besides the infringing product, name card , invoice with the seal of the infringer's company and preferably infringer's catalogue should be collected on site. Notary public will include the written record of purchasing process, detail address, description of surroundings, copy of the invoice, name card and product catalogue in the notary document. Notary public will also seal the package of the product , proving that the package has never been opened or altered by anyone until the seal is destroyed and the package is opened in trial before the judges.

In the Full United v. Airwheel case mentioned above, beside the notary document proving defendant's act of offering to sell mention above, Beijing Fangyuan Notary Office issued another notary document (no. 23511), notarizing that the notary public went to Dinghao Electronic Market (address: No. 3, Haidian Boulevard, Haidian District, Beijing) and bought a "Airwheel" brand self balancing vehicle with model "S3". The product itself was sealed by the notary public. In the photos of the notary document, the company name of "Changzhou Airwheel Technology Co., Ltd" is indicated in the product description. The invoice was issued by Beijing Dalishengtong Co. and the value was CNY 6,300 (USD 945).

The evidences collected through notary public are crucial to the success of the case. Such way of collecting evidence is especially suitable for infringing products readily available in the online market or in the defendant's shop or factory.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.