Articles in this chapter
Article 71
In actions relating to infringement of the patent right, where the invention is in the form of a product, the burden of proving infringement rests on the party alleging infringement; but where the invention is in the form of a process for obtaining a product, and convincing evidence exists — including a reliable expert opinion — that the product obtained may have been made through the said process, and the process actually used cannot be established through reasonable efforts, then in civil actions the burden of proving that the product was not produced through that process rests on the defendant in the infringement action. In that case, where the defendant, in order to prove his claim, presents documents or production or trade secrets to the court or to an official justice-administration expert, their disclosure is prohibited, and the perpetrator shall, in addition to compensation for damage, be sentenced to the maximum punishment prescribed for disclosure of trade secrets, and execution of the said punishment may not be suspended.
Frequently asked
Article 71 · in plain terms
Who bears the burden of proof in a process-patent infringement case?
Normally the party alleging infringement. But for a patented process, where there is cogent evidence that a product was likely made by that process and the actual process cannot reasonably be established, the burden shifts to the defendant to prove the product was not made by the patented process.