When considering the burden of proof on the manufacturing method of a non-new product, there is a habit of thinking about "who advocates, who gives evidence"? I.e., the patentee is the only one who should bear the burden of proof in the infringement lawsuit, although it is very difficult for the patentee to obtain solid evidence for proving that their patented method is infringed.

However, a first-instance judgment ((2015) Jing Zhi Min Chu No.7) issued by Beijing Intellectual Property Court showed that if the patentee submits credible preliminary evidence to prove that there is a high likelihood that the defendant used the manufacturing method in the involved patent, the burden of proof should be shifted to the defendant. The above judgment was supported by the following second-instance judgment ((2017) Jing Min Zhong No. 402). These two judgments represent a great significance to patentees who defend their patent rights on the manufacturing method of a non-new product.

First-instance judgment

The above two judgments were issued on the basis of a patent infringement lawsuit, in which the involved patent is ZL201010156763.7, "a method of making color painting in ancient buildings". When the patentee, Zhao Liangxin (hereinafter referred to as "Zhao") visited Anyuan Temple, he discovered that the painted ceiling in this temple was made by the manufacturing method of his patent, and the suspected infringer was the Chinese Academy of Cultural Heritage (hereinafter referred to as "CACH"). Thus, Zhao filed a patent infringement lawsuit against CACH before Beijing Intellectual Property Court (court of first instance).

Since the painted ceiling had been made several years ago, Zhao had no means to obtain solid evidence to prove CACH's infringing behavior. During the first instance, the two parties agreed to invite a judicial authentication institution to authenticate the manufacturing method of the involved ceiling. The authentication report showed that the ceiling of Anyuan Temple was made by the method in Zhao's patent.

Beijing Intellectual Property Court held that on the basis of the authentication report, there was a high likelihood that the defendant used the manufacturing method in Zhao's patent, thus, the burden of proof should be shifted to the defendant, i.e., it is the defendant's had to prove that its manufacturing method was different from Zhao's patent.

However, CACH failed to submit effective evidence to prove that they did not infringe Zhao's patent. So the court of first instance issued a judgment which held that the infringement fact was clear and CACH should bear the infringement compensation liability.

Second-instance judgment

CACH did not agree with the Beijing Intellectual Property Court's judgment and filed an appeal before Beijing High People's Court (High Court). The High Court supported the judgment issued by the court of first instance. The detailed explanation in the second-instance is as follows.

The High Court explained that by law, any party who holds the evidence bears the burden of proof to restore the facts of the case. The principle of the distribution of the burden of proof should assure the identification of the objective fact, on the basis of fairness and honesty. Generally speaking, if the evidence submitted by one party meets the requirements of the principle of dominate evidence, the burden of proof can be deemed to be completed. If the other party disagrees with this evidence, they should submit evidence to the contrary or deny the possibility of the existence of the factum probandum (a fact that needs to be proved). As to the manufacturing method of a non-new product, if the patentee has proved that the defendant manufactured the same products, but failed to prove that the defendant used the method in the involved patent despite the patentee's endeavors, the judge should make a judgment on the basis of the specific situation of the case, combined with the proven fact and daily experience. If the judge holds that there is a high likelihood that the same product is manufactured by the method in the involved patent, he/she should shift the burden of proof from the patentee to the defendant. If the defendant cannot prove that their manufacturing method is different from the method in the involved patent, it can be presumed that the defendant used the method in the involved patent.


Every patentee is puzzled by the difficulty of obtaining solid evidence to prove their patent on manufacturing method of a non-new product has been infringed.

The above two judgments are of great help for these puzzled patentees. As long as the patentee has credible preliminary evidence against the suspected infringer, they can file a patent infringement lawsuit to defend their patent rights.

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.