How is information and evidence submitted to the court scrutinised? For example, is cross-examination available and if so, how frequently is it employed in practice?
Intellectual Property (2nd edition)
Courts evaluate evidence based on common sense and a full and detailed study of the case. Each piece of evidence is to be scrutinised individually and in combination with others. No special cross-examination procedure is employed, but parties may provide clarifications regarding submitted evidence and also ask questions of experts and witnesses during court hearings. It is also possible to claim evidence fraud, which may result in exclusion of the evidence from the case.
Cross-examination by a party's counsel of fact witnesses and/or expert witnesses is available in China in instances where such evidence is led. However, this by no means happens in all IP cases. In practice, China's legal regime prefers documentary evidence, scrutiny of which takes place via court debate led by counsel.
In civil procedure, submissions and/or evidence are presented to the Courts in writing. The content and strength of evidence submitted by parties are freely assessed by the court, it being specified that:
- the parties can freely discuss the probative value of an exhibit or the conclusions drawn from evidence.
- the probative value can vary according to the type of evidence. For instance:
- a stronger probative value will be granted to a judicial expertise compared to an amicable one.
- a bailiff report is deemed to be valid unless an allegation of forgery is made.
French civil procedure does not provide any process of cross-examination of witnesses.
The Court can freely assess the evidence taken. The parties have to evidence each of their allegations by offering evidence, such as physical records, testimony or questioning of the parties, for each allegation. In general, the witnesses and parties will be questioned by the Court or the party who has requested their testimony/questioning and only in relation to the specific allegations where their testimony/questioning was requested, but some Cantonal Courts tend to be more flexible than others.
A party may question the evidence provided by the other party and provide counterevidence. The court and both parties are allowed to ask questions to the persons appearing before the court during trial (witnesses, experts, representatives of the parties). Thus, no specific cross-examination procedure is employed.
Ultimately, the court assesses the credibility of all evidence in the judgment, using logic and common sense principles.
Art. 116 Italian Civil Procedural Code states the principle pursuant to which the Court is free to assess the evidence provided by the parties, unless otherwise stated by the Law. Therefore, there is no kind of pre-fixed rules for the evaluation of the evidence for the judges, but they must explain their motivation in their rulings. Under Italian Law cross-examination is not admissible.
Cross-examination is available at any trial. The length of cross-examination will depend on the nature of evidence given, its importance for the case and its complexity.
Israel has an adversarial legal system, and accordingly, witness testimony is presented in court and is subjected to cross-examination.
The testimony of witnesses is necessary to establish infringement before the courts. That said, most direct testimony is filed as an affidavit, and witnesses are only subjected to cross-examination in court.
In Chile, the act of "cross-examination" does not exist, and the evidence must be accompanied to the Court by means of a written document, each evidence having to be sufficiently identified.
Once the evidence has been presented, the counterparty has the possibility to object the validity of these documents within three days of its notification.
- The Civil Procedure Rules which entered into force as of January 1, 2016, introduced significant changes as far as the involvement of witnesses in proceedings is concerned. Under the current procedure, witness testimonies are submitted as sworn affidavits. In this stage, cross-examination is not possible. Each party may present up to five sworn affidavits in support of its argumentation and three sworn affidavits in rebuttal. After the assessment of the affidavits by the judge, a formal court hearing takes place and the judge decides the case on the basis of the submitted evidence. It is in the judge’s discretion to select one of the persons who provided a sworn affidavit to provide an oral testimony before the court in case the judge deems this is absolutely necessary. In such cases cross examination of witnesses is permitted. The system does not apply to preliminary injunction proceedings where witnesses (one from each side) are examined and cross-examined during the hearing. Sworn affidavits and/or expert opinions are also available in preliminary injunction proceedings.
- In criminal proceedings, witnesses are examined and cross-examined during the hearing. The case file is the responsibility of the prosecuting authorities. Nevertheless, parties to the proceedings, before or during trial, may bring to the authorities' or to the court's attention documents and related evidence.
- In administrative proceedings, the case file is the responsibility of the administrative authorities. However, parties to the proceedings, either at pre-trial, or during trial, may bring to the authorities' or the court's attention documents and evidence, pertinent to the case. Witnesses are very rarely examined in administrative proceedings during the hearing. Witnesses may be examined before a Notary Public, following prior notification of the other party.
In the High Court's Patents Court and Intellectual Property List, most witnesses providing expert and fact evidence will be called by the opponent for cross-examination during the trial. The length of cross-examination will depend on the nature of evidence given, how important it is to the case and its complexity. Typically, for example, an expert witness will be cross-examined for between 1-2 days. The barristers advising on a case will agree a timetable for the trial and the cross-examination of witnesses.
In the IPEC, the Court intends to provide more streamlined procedures. As a result cross-examination is less routine and, if it takes place, is limited to specific issues, making it considerably shorter in duration. An IPEC trial is limited to 2 days.
Cross examination of witnesses takes place during the trial.
Information and evidence is submitted to the Court when presenting the lawsuit when it documental. If not, the evidence is only announced in the lawsuit and submitted during the hearings.
Cross-examination is available and usually used by both parties.
Evidence is submitted to the court through witness testimony and exhibits. Witness testimony is introduced into the record through direct examination by a party and the content of that testimony can be effectively challenged through cross-examination, which remains a key mechanism for scrutinising evidence. Exhibits can be submitted in the form of real evidence, which includes content such as the patent and prosecution history, and demonstrative evidence that is generally created by an attorney and can be used in conjunction with a witness’s testimony. Demonstrative evidence can be introduced into evidence if sufficiently accurate. However, demonstrative evidence can be excluded from evidence by a party but used as an illustrative aid to augment testimony if the court determines that the evidence is not sufficiently accurate. Expert testimony can be challenged using a Daubert motion that applies a plurality of factors that are used to evaluate an expert’s reliability. The factors include whether the expert’s theory is subjective or objective, whether the theory can be tested, whether the theory is generally accepted in the scientific community, as well as others.
Writ: Evidence tendered through witnesses and is open to cross examination. It is employed in every case.
Originating Summons: the Court will look at affidavit evidence and rebuttals.
Direct testimonies in intellectual property cases before the courts take the form of question-and-answer affidavits, also known as judicial affidavits. The affiant-witnesses who execute such affidavits must always be presented for oral cross-examination, otherwise, their judicial affidavits and testimonies are expunged from the court records. Documentary evidence attested to by such witnesses is already appended to their judicial affidavits.
The strength of the evidence submitted by the parties is freely assessed by the judges. Cross examination is available, but not frequently employed in the IP infringement litigation.
Evidence submitted to the UAE courts shall be by way of written submissions supported by documentary evidence, translated into Arabic (if in another language). The UAE Courts do not expect to see, and actively deter, witness statements, affidavits and other such legal instruments. As a result, witnesses of facts do not give oral evidence, unless a party is granted the right to call a witness.
The officials expect to see documentary evidence such as invoices, order forms, advertisements, registration certificates and such documents. Where the documents are issued outside of the UAE, such as foreign trade mark registration certificates, these will need to be legalised to the UAE Embassy in the country of issue.
Cross-examination is not available in our jurisdiction. The Courts shall follow certain guidelines and principals when analysing some piece of evidence. Such guidelines and principals are provided in our legislation but also in our jurisprudence.
Information and evidence is produced before the court and taken on record in the form of documents, exhibits, and witness testimony. Admission and denial of documents is an important part of the process. Cross-examination of witness is a necessary part of the trial stage and frequently practiced.
The court must decide the case based on all the facts of the matter, in accordance with the principle of free evaluation of evidence. Generally, the court applies the balance of probability test. In principle, the owner of the rights bears the primary burden of proof to establish infringement.
The most common form of evidence used in infringement proceedings is documentary evidence. Witness evidence is also commonly used and the principle that witnesses must be heard in person before the court is central in Swedish procedural law. Witnesses are heard at trial and are subjects to cross-examination by the parties.
Patents - Information and evidence filed by one party are available for scrutiny and comment by another party. Relevant questions can be asked during the hearing about the information and evidence.
Trade marks - According to the Civil Procedure Law, written evidence or the minutes of the examination thereof shall be read at a court hearing or presented to participants in the case, and, if necessary, also to experts and witnesses. Whereas material evidence shall be examined at a court hearing and presented to the participants in the case, and, where necessary, also to experts and witnesses. Participants in the case may provide explanations regarding material evidence and express their opinions and requests. Minutes of the examination of material evidence, written pursuant to the procedures for securing evidence or a court assignment, shall be read at a court hearing.
According to Section 108 of the 2015 Civil Proceedings Code, the court is liable for scrutinizing evidences objectively, comprehensively, fully and correctly, wherein each of the evidences, connection amongst them, the legality, relevance and proof value.
Upon the request of a concerned party or where the testimony of concerned parties or witnesses is considered inconsistent, the judge shall arrange cross-examination between various concerned parties or between a concerned party and a witness or between various witnesses. And the cross-examination shall be included in a record which shall be signed by participants in the cross-examination.
Courts can order the parties to attend the hearing and can hear the parties and/or witnesses. While cross-examination is not available under German law, the court can in principle allow the parties to address questions to the witness directly; however, in most cases, only the judges will interact with the witnesses.
Evidence is scrutinised by means of cross-examinations which are a fairly common procedure. Should the witness be of interest, cross-examination will inevitably take place. Should any document or witness be brought at a time in which the production of evidence is closed, or if a witness cannot be cross-examined, the document or the witness statement may be expunged from the court proceedings.
The content and strength of evidence submitted by parties are freely assessed by the court. A recent change in the Brazilian Code of Civil Procedure allows cross-examination, which however is not that much employed in solving IP cases in Brazil.
The Court will decide the case based on the submitted evidence. In general, the court will apply the balance of probability test, wherein the rights holder or the licensee has the primary burden of proof to establish that an infringement has occurred.
The owner of the rights and the alleged infringer will primarily provide documentary evidence as well as witness evidence. The claimant's witnesses will first be examined by the claimant's attorney, and then cross-examined by the defendant's attorney. Thereafter, the panel of judges may have some questions, and the claimant's attorney will also have the opportunity to ask follow-up questions. The same procedure will be used for the defendant's witnesses. It is quite normal that the witnesses are cross-examined by the other party's attorney, but the cross-examination will normally be much shorter than the main examination.