Adobe and Autodesk Case: Evidence Preservation by Beijing IP Court

Feynman Z. LIANG | July 27, 2016

On 25 July, upon the petition from Adobe, Inc. and Autodesk, Inc., Beijing IP Court finished the evidence preservation in a litigation brought by the aforesaid companies against Beijing Ourpalm Co., Ltd. for software copyright infringement.

Adobe is the proprietor of software copyright from its product Adobe Photoshop, Adobe Illustrator, Adobe Flash, Adobe After Effects and Adobe Dreamweaver. Autodesk is the proprietor of software copyright from its products Autodesk Maya and Autodesk 3ds Max. These plaintiffs claim that Beijing Ourpalm Co., Ltd. copied, installed and used in commerce the copyrighted software without the authorization from the plaintiffs and therefore infringed their copyrights.

After the complaint was filed before Beijing IP Court, Adobe and Autodesk filed a petition of evidence preservation before the Court and begged the Court to preserve the evidence of the act of illegal copying, installing and using of the copyrighted software in the premises the defendant.

After examining the related evidence, the collegiate bench considered that
1. the petition meets the legal conditions of the evidence preservation
2. In the infringement case involves software end user, evidence is usually hard to obtain
3. the plaintiff has provided bond

The court therefore decides to grant the petition of evidence preservation.

Beijing IP Court served the complaint together with the notice of evidence preservation to the defendant. When performing the evidence preservation, the judge discovered that certain staffs of the defendant tried to uninstall and delete the software at issue in their computers. The judge ordered them to stop the act and follow the instruction. The evidence preservation lasted for 6 hours with evidence of software at issue in almost 500 computers being preserved.

In the Chinese civil procedure, there is no discovery procedure similar to the US practice. In other words, one party has no obligation of disclosing evidence upon the request of the other party in the litigation. Burden of evidence is on the plaintiff in most cases. Therefore, for product not usually available in the market or in other especially difficult situation such as process claim infringement, evidence preservation procedure provides an effective alternative for the plaintiff. Such petition may be filed before the court in the civil proceedings or before the administration in the administrative proceedings. If the court or the administration grants the petition, the judge (in civil proceedings) or the official (in the administrative proceedings) will enter into the premises of the defendant and preserve the evidence through taking pictures, recording process, making copy of the accounting book, taking sample of the product at issue etc. These evidences are usually not obtainable in any other alternatives of evidence collection by the plaintiffs. In this case, Beijing IP Court performs the serving of the complaint and evidence preservation at the same time, effectively preventing the defendant from destroying evidence of infringement.