With the rapid development of computer network technology and the increasing popularity of information network, it has become a very convenient way to obtain information from the network, and many people choose to obtain information through the computer network. Because the information disclosed by computer network has the characteristics of super-regionality, hypertext, easy modification and uncertainty of the original, the legal effect of information obtained by computer network has become the focus of attention. Through the comments on actual cases, the author puts forward his own views on the information obtained by the network as evidence (hereinafter referred to as network evidence). He thinks that if the source of network evidence is legal, the content is true, the acquisition method is complete and objective, and the other party cannot provide effective evidence, the network evidence can be used as the basis for finalizing the case.

In recent years, there are more and more cases of using network evidence in patent invalidation cases. How to judge the legitimacy and authenticity of network evidence, so as to better judge the effectiveness of network evidence? Seven related patent cases have aroused our thoughts.

Case 1

The patent involved is an electric bicycle toy. The parties submitted (2003) Shan Zheng Zi No.434, notarized by Shantou Notary Office on June 2, 2003, 5438+065438+1October 2, and (2003) notarized by Shantou Notary Office on October 24, 2003. The above three notarial certificates are attached with notarial operation flow and printed pages, all of which record that the notary logged into Meijia Toy Network on the day of notarization, entered two adjacent dates in the column of release date, and searched for the toy article number "MK03 1 427 1". No qualified record was found in the previous date, but "Window Box Electric Music Bicycle 8808" was found in the latter date.

According to Article 64 of the Supreme People's Court Fa Shi (2002) No.21"Provisions of the Supreme People's Court on Several Issues Concerning Evidence in Administrative Litigation", "Data fixed or displayed in tangible carriers such as electronic data exchange and e-mail, whose production and authenticity are confirmed by the other party or proved by other effective means such as notarization, have the same probative effect as the original." The court of first instance and the court of second instance unanimously determined that the three notarial certificates of this case were all fixed on the network content in written form, and after notarization by the notary office, they should be deemed to have the same effect as the original. In addition, Meijia Toys.com is an independent website. In the absence of evidence to the contrary to prove that the contents recorded in the above three notarial certificates are untrue, the contents uploaded by this website should be deemed to be true. Therefore, it denies the conclusion that "it is very operable to change the network data in real life, the network information resources are in an extremely unstable state, and the notarization dates of the three notarial certificates are all after the patent application date, and the notarization content is to trace back the previous facts through the network, and it is not enough to determine the true state of the network information resources before the patent application date only by notarial certificates".

Case 2

The patent involved is the dual-color screen structure of mobile phone. The parties submitted the notarial certificate (2004) Jing Chong Zheng Nei Min Zi No.3738 issued by Beijing Chongwen District Notary Office on September 9, 2004 and the notarial certificate (2004) Jing Chong Zheng Nei Min Zi No.48 10 issued on October 20, 2004 as evidence. The above two notarial certificates issued by Beijing Chongwen District Notary Office are attached with printed pages of relevant web pages, which respectively record the listing date of Tianshida T6+ mobile phone in June 2003 and the listing date of Jin Peng Yu Ling A 1 18 mobile phone in June 2003.

The court of first instance held that although the advertisements recorded in the printed pages of the web pages attached to the two notarial certificates in this case included the listing time of Tianshida T6+ mobile phone and Jin Peng Yu Ling A 1 18 mobile phone, the above two notarial certificates could only prove that the above information was on the notarization dates (September 19, 2004 and June 65438+/KLOC-0, 2004).

case analysis

The similarity of the network evidence in the above two cases is that they all come from commercial websites: the downloaded webpage has the same probative effect as the original webpage through notarization and becomes legal evidence. The difference is that the network evidence in the case of 1 comes from an independent commercial website, which discloses the product information edited and published by this website, and defines the product number "MN03 1427 1". The information of the website is managed by the website itself, and the network evidence in case 2 comes from the general commercial website, and the information published by the website is provided by the merchant, and the website is only provided to the merchant. Because of the different characteristics of network evidence in the above two cases, the starting point for judging the probative force of network evidence is also different. In the case of 1, the operating nature of the website became the key for the court of first instance and the court of second instance to determine the authenticity of the public information of Meijia Toy Network. In case 2, the public information of the website is the product advertisement and the advertisement product introduction published by the merchant on the website. In the absence of other valid evidence, the Patent Reexamination Board of the State Intellectual Property Office and the court of first instance questioned the authenticity of the website information.

From the above analysis, it can be seen that the notarization of the process of obtaining information through the network, the nature of the website and the nature of the public information on the website have become the key to the authenticity of the evidence in the above two cases. The Examination Guide, implemented on July 1 2006, stipulates that the provisions of this Guide shall apply to all kinds of problems related to evidence in the request for invalidation, but this Guide does not stipulate.

Characteristics and effectiveness of network evidence

Network evidence comes from websites. The operation mode of the website is mostly determined by the nature of the website, so the nature of the website often becomes the spokesperson of the quality of the website. Without other valid evidence, such as government websites and websites of educational and scientific research institutions, it is impossible to determine the authenticity of this part of information. To confirm the decision 10 1 1 of the Patent Reexamination Board. 78 10 China National Intellectual Property Administration's provisions on the examination of the request for invalidation can refer to the relevant provisions in the civil procedure of the people's court. The Civil Procedure Law of People's Republic of China (PRC) and the Administrative Procedure Law of the People's Republic of China stipulate seven forms of evidence. At present, legal experts have different opinions on what kind of evidence online evidence belongs to. In the above two cases, the court did not determine which form of evidence the network evidence belongs to, but directly determined that the network evidence can be used as evidence. The author thinks that because network information is published in digital form by websites and used for public browsing, downloading and editing, its storage and display are dependent on other carriers and output devices, such as hard disks, flash memories, monitors and printers. Without these devices, network information cannot exist independently or be recognized. The definition of network information not only indicates the source of network information, but also determines its form. Evidence refers to all materials that can prove the objective situation of a case. Whether a piece of evidence can be used as the basis for deciding a case is usually based on whether it meets the "three characteristics" of evidence, that is, legitimacy and relevance. In terms of authenticity, network information as evidence is no exception. Therefore, in the trial of cases with network evidence, we should not mechanically apply the prescribed types of evidence, but directly identify network evidence from the "three characteristics" of evidence. It can be said that as long as the network operators can prove that the network information they have saved is in the original state without any deletion by convincing technical means, this kind of network information may become legally recognized evidence: that is, as long as the parties ensure the legitimacy of the source and form of network information and ensure that the customers of network information are mostly used for public services, such as the website of the European Patent Office (https://ep) and the China Knowledge Network hosted by Tsinghua University (https:// ellipsis). The viewpoint in these kinds of websites is that there are facts such as advertising goods or product profiles on the Internet on the day of notarization, but it is impossible to know the authenticity of the information content of advertising goods. "

It seems that the court can use network information as evidence.

The author believes that network evidence is the product of the new era. Whether it is appropriate to understand the effectiveness of online public information from the main points of the above two cases is controversial among patent workers and judicial workers. First of all, there are various types of websites, which can be divided into government websites, enterprise websites, commercial websites, educational and scientific research institutions websites and personal websites according to the nature of disciplines. Websites of other non-profit organizations and other types of websites. Secondly, the Internet connects all corners of the world. Internet servers belong to different countries, and their management is subject to the laws of the country where the servers are located. Thirdly, the information published on the Internet is not in the form of text, but a data file composed of a series of specific digital codes, which is based on computers and exists in the form of digital signals, and can be merged by computer technology. Modifications such as replacement and deletion may also be damaged due to network or circuit failure, improper operation or use by operators, unstable technology and other reasons, and such damage is not easy to be detected. It can be said that network information is super-regional, hypertext, dependent and modifiable. Original uncertainty and other characteristics.

The author believes that network evidence has its own characteristics, and the effectiveness of network evidence should be comprehensively judged from the sources, contents and forms of network evidence according to the evidence rules. For those who meet the "three characteristics" of evidence, affirm the evidence effectiveness of network evidence, otherwise, question the credibility of network evidence. That is, the author agrees with the court's judgment on the validity of network evidence in case 1 and case 2.

Public information usually involves natural science, engineering technology, humanities and social sciences, etc. These information are public knowledge information that has been audited by webmasters or other professionals, such as news, reports, standards, papers, technical documents, etc. Moreover, this kind of website is only for the public to browse and download information, and the website is highly maintainable. No one except the webmaster is allowed to make any changes to the content of its website, even if the website is original after being updated. Based on the characteristics of these websites, it is generally believed that the information published by these websites is highly reliable. The author believes that in the trial or trial of a case, as long as it is confirmed that the network information comes from the above-mentioned website, the legitimacy of the network information can be determined. In the case that the other party cannot provide other valid evidence, the authenticity of the content of network information should be recognized, and the network evidence recording such network information can be used as the basis for finalizing the case.

Commercial websites and personal websites are usually used to broadcast news, disseminate commercial information provided by companies or individuals, commercial information and advertising information collected by websites, etc. However, these kinds of websites generally do not have the obligation or ability to identify the authenticity of commodity information content, and their business purpose is to make profits or promote commodities, which is very commercial. The author believes that the authenticity of the information (except news) published by these websites needs to be appraised. In the trial of invalid patent cases, we should reasonably question the authenticity of the information from these websites, especially the information with advertising color. If the network evidence comes from an independent commercial website, the website will edit the published information and assume independent obligations for the published information. If the other party cannot provide other valid rebuttal evidence, the authenticity of the evidence can be determined. If the network evidence comes from the general commercial website, the website simply provides a platform for commodity sellers or manufacturers to publish information. Do not assume the obligation to the authenticity of information, in the absence of other evidence to prove the authenticity of information, we should question the authenticity of network evidence. For example, in case 2, the parties used the information disclosed by the general website as evidence, but did not submit evidence of the authenticity of the information content of the website. The court of first instance and the Patent Reexamination Board of the State Intellectual Property Office unanimously determined that such website information cannot be used as conclusive evidence alone.

Based on the characteristics of network information, the collection of network evidence is mainly carried out online. Network forensics can be kept by the parties themselves. It can also be entrusted by the parties to a neutral third party, such as notary offices and network operators, to fix and preserve the network evidence. In the process of case review or trial, we should not only judge the nature of website and network information, but also judge the legitimacy of network evidence form.

Article 14 of the Measures for the Administration of Internet Information Services stipulates that "Internet information service providers engaged in news, publication, electronic announcement and other services shall record the information provided and its release time, Internet address or domain name; Internet access service providers shall record information such as Internet users' online time, user account number, Internet address or domain name, calling telephone number, etc. The records of Internet information service providers and Internet access service providers shall be kept for 60 days, and provided when the relevant state organs inquire according to law. " In my opinion, domestic websites usually have no obligation to provide inquiries after 60 days stipulated in the above measures, and the frequency of commercial websites is relatively fast. It is very likely that when you log in to the same website at different times, you will not be able to find the information you have read or downloaded before. However, the trial or trial of patent cases takes far more than 60 days. If the parties to a patent case submit the information they obtained from such websites as evidence, and the Patent Reexamination Board of the State Intellectual Property Office or the people's court cannot verify the legality of the information form due to different inquiry times, it shall be deemed that the party providing the evidence shall bear adverse consequences. That is, if the parties collect network evidence by themselves, and the information collected by the parties can be reproduced through the existing computer network technology, and the authenticity of the network evidence form can be verified, the legitimacy of the network evidence form should be recognized; Otherwise, its legitimacy will not be recognized.

Any public information on the Internet can not be separated from the technical support of network service providers, and the dissemination of network information will leave a record on the system of network service providers. If the network service provider provides evidence to prove that the information is made public through the network, the legitimacy of the network evidence form can also be recognized.

Article 67 of China's Civil Procedure Law stipulates that "the people's court shall take legal acts, legal facts and documents notarized through legal procedures as the basis for ascertaining facts. However, unless there is enough evidence to the contrary to overturn the notarial certificate. " Article 64 of the Provisions of the Supreme People's Court on Several Issues Concerning Evidence in Administrative Litigation stipulates: "Electronic data exchange, e-mail and other data fixed or displayed by tangible carriers, whose production and authenticity are confirmed by the other party, or proved by other effective means such as notarization, have the same probative effect as the original." The author believes that the notarial certificate has legal effect, and the network evidence obtained through notarization should recognize the legitimacy of the network evidence form in the absence of other valid evidence. However, the contents of the notarial certificate need to be cross-examined before we can make a judgment on whether to accept it or not. Therefore, it is also necessary to make a scientific analysis of the notarial deed, especially the way in which the notary office records the network evidence when saving the network information. First, check whether the notarial certificate records the notarization process of obtaining network evidence (including the time, place, method and process of obtaining network information, etc.). ). Secondly, check whether the notarial certificate prints the relevant information on the network one by one, or collects the information by means of audio and video recording. That is, scientifically examine the integrity and objectivity of notarial certificates. If the parties use scientific means to collect network evidence and notarize it, they can be deemed that the way they obtained network evidence is legal. Otherwise, its legitimacy should be questioned.

In case 1, the notarial certificate records that the notary office collected the same information three times in different ways at different times, and kept the collected network information in written form, which ensured the scientific form of network evidence and improved the credibility of network evidence.

With the development of network technology to a deeper level and a wider range. Judging the effectiveness of network evidence will inevitably encounter more and more obstacles and troubles. However, the nature of the website, the nature of network information and the way of obtaining network evidence are still the key to judge the effectiveness of network evidence. In short, in patent cases, as long as the network evidence provided by the parties conforms to the rules of evidence, and the other party cannot provide effective evidence, the network evidence can be used as the basis for establishing a village.

Network evidence is in the ascendant, and the author puts forward his personal views here, hoping to play a role in attracting jade.