1. What is "Limitation of Proof"?

"Limitation of Proof" refers to a time period fixed by law or specified by a court during which the party to a civil action, having the burden of proof, shall submit evidence to the court proving its claims; otherwise it shall assume the legal consequence of losing the chance to submit proof to the court . It can be seen that limitation of proof is the time during which the litigant shall submit evidence to the people's court. Its legal force means that the people's court shall accept evidence submitted by the litigant within the limitation of proof period and have it cross-examined. Should the submission occur after the expiration of the limitation period, the people's court may not allow cross-examination unless the opposing party agrees, and the litigant that submits the evidence shall assume the corresponding legal consequence.

Pursuant to the Several Provisions of the Supreme People's Court on Evidence in Civil Procedures, limitation of proof may be determined by the litigants through consultations or by the people's court. The limitation determined through consultations shall be subject to the approval of the people's court. Should the litigants fail to agree, the people's court shall assign a time limitation for them, which shall not be less than 30 days, beginning from the day after the litigants receive the court's notice accepting the case and upon notice to the defendants. Once the limitation of proof period is determined, the litigants shall submit evidence to the people's court within the time period, otherwise they are considered to be waiving the right to submit proof.

In IP infringement cases, when the defendant raises jurisdictional objections, "whether the objections affect the limitation of proof" and "whether the objection itself has a limitation of proof period", are problems deserving study.

2. Will jurisdictional objections affect the limitation of proof period determined for infringement actions?

In accordance with the Civil Procedure Law, the period for contesting jurisdiction is basically identical with the defendant's time period to reply to the plaintiff's action. Article 38 of the Civil Procedure Law prescribes: "Where a party has an objection to the jurisdiction after the case is accepted by the people's court, the party shall raise its objection during the time of submitting a written reply". Article 113 prescribes: "The people's court shall, within five days of filing a case, send a copy of the claim to the defendant, and the defendant shall, within 15 days of receiving the copy, present a written reply". From here we can see that the period for contesting jurisdiction shall be 15 days from the day when the defendant receives a copy of the claim (or 30 days for cases involving foreign interests). From the judicial practice, we see that when the notice for responding to an action is sent to the defendant, a copy of the claim is also sent. The initial day of the limitation of proof is usually the same as the period for the defendant to reply to the plaintiff's action. However, their termination periods differ, with the former occurring after the latter. If the defendant raises jurisdictional objections in an infringement action during the period for the defendant's written reply, how shall it affect the limitation of proof period that has already been determined?

IPR judicial practice shows us that there are different approaches for resolving this issue. The first approach is that after the defendant raises objections to the jurisdiction, the limitation of proof that has been determined by the court will be automatically terminated. After the court's jurisdiction is determined, the court with jurisdiction will re-determine the limitation of proof period. The reason for this is that the right to contest the court's jurisdiction must be exercised before the court's hearing of the case. Before the court that accepts the case confirms its jurisdiction over the case, it has no power to determine the limitation of proof, and naturally, the one previously determined will cease to be in force. The second approach is that the raising of jurisdictional objections by the defendant will not affect the limitation of proof period determined by the court accepting the case, but will result in the suspension of the limitation period. When the dispute is resolved, the running of the limitation period will continue. The reason is that no matter the court accepting the case has jurisdiction or not, the limitation of proof determined by it still has legal effect. The third approach represents a compromise of the above two, by providing that if the defendant raises jurisdictional objections, the limitation of proof period determined previously will be terminated. However, the period for hearing jurisdictional objections, which is usually three months, is usually much longer than the prior determined limitation of proof period. Both parties may collect evidence during this time. Therefore, after the jurisdiction opposition procedure is completed, the limitation of proof to be re-determined shall normally be no longer than two weeks.

The third approach is usually adopted in judicial practice owing to its high adaptability and convenience. But I favor the second method. The limitation of proof formerly designated by the court that accepts the case shall be terminated from the day when the defendant raises objections to the court's jurisdiction during the period for its defense. If the final ruling grants the court jurisdiction, the limitation of proof period will not be resumed until the day when the final ruling enters into force. For cases involving jurisdictional disputes, the limitation of proof will be calculated after the interval by deducting the period before the objection is raised.

In practice, due to the long period for hearing jurisdictional disputes (normally much longer than the limitation formerly designated by the court that accepts the case), the limitation of proof may be cut short, and the date of expiration may be re-determined when mutually agreed by both parties after the jurisdiction ruling becomes effective. It shall be noted that the termination of the limitation of proof period after the defendant raises objections to the jurisdiction does not mean that the litigant should not submit evidence to the court. If the court deems that the plaintiff has not satisfied the preliminary burden of proof, (e.g. the plaintiff does not furnish any evidence that can prove the involvement of the defendant in the accused infringing act,) it is entitled to require the plaintiff to complete the designated burden of proof.

In addition, should the litigant apply to extend the limitation of proof at its expiration, the people's court shall deal with the case in compliance with the Several Provisions of the Supreme People's Court on Evidence in Civil Procedures, and shall not deny the application for the reason that the case  faces a jurisdiction opposition procedure. It shall be noted that in joint actions involving several defendants, the limitation of proof period for other defendants not raising jurisdictional objections shall share the same resolution. This is because as long as the defendant raises objections, the plaintiff's limitation of proof will be terminated. Consequently, it will be unfair for the other co-defendants to observe the original limitation.

3. Does the jurisdictional objection itself have a limitation of proof?

In IP infringement cases, when the defendant raises objections to the court's jurisdiction, the calculation of the limitation of proof formerly determined by the people's court will be terminated. However, does the objection itself have a limitation of proof? Should both litigants, within this limitation, submit evidence on whether the court accepting the case has the jurisdiction? As for these questions that arise in the judicial practice, we cannot find rules in the present laws or judicial interpretations.

For example, in the computer software copyright infringement and unfair competition case of a computer company in Shenzhen against a technology company in Beijing, the plaintiff confirmed with the administration for industry and commerce on May 25, 2006 that the defendant's domicile was in the area under the jurisdiction of the court that accepted the case. However, the new business license obtained by the defendant on May 26, 2006 showed that it was not in the area. On May 30, 2006, the plaintiff brought the case to the people's court based on the material obtained from the administration for industry and commerce.

After receiving the notice for responding, the defendant raised a jurisdictional objection at the end of July 2006, claiming that when the claim occurred, the domicile was not in the area under the jurisdiction of the court that accepted the case, and that the court had no jurisdiction over the case. After receiving the material on the jurisdictional dispute, the plaintiff went to a notary organ in the area under the court's jurisdiction and had the defendant's infringing act notarized. Relying on this, he claimed that the court that accepted the case had the jurisdiction. The court deemed that although the notarized material was removed to it after the defendant raised objections to its jurisdiction, it could prove that the accused infringing act was located in the area under its jurisdiction, and declared its jurisdiction over the case. In the second instance trial, the court affirmed the first instance judgment.   Actually, this case involves the problem of whether the litigant's limitation of proof shall be specified in cases concerning jurisdictional disputes. If it is, the court shall accept the notarized material supplemented by the plaintiff within the limitation, and thereby determine its own jurisdiction. If not, whether the court shall accept the supplemented evidence is a problem that requires further study.

In the IP infringement actions with jurisdictional objections, shall limitation of proof be applied to require the two parties to prove that the court that accepts the case has the jurisdiction? Especially when the plaintiff has submitted preliminary evidence when it brings its lawsuit proving that the court has the jurisdiction, and when the defendant raises objections that the evidence cannot prove the court's jurisdiction over the case, there are different views on whether the plaintiff is authorized to supplement evidence to prove the said jurisdiction after the court has ruled after a hearing that the evidence failed to prove the plaintiff's case.

The first view is that cases with jurisdictional disputes shall not be given a limitation of proof. The plaintiff, in its claim, and the defendant, in raising its objections to jurisdiction, shall submit evidence at the same time as to whether the court that accepts the case has the jurisdiction over the case. If the evidence submitted by the plaintiff in its claim proving that the court has the jurisdiction is held to be inadmissible, and the defendant raises objections to jurisdiction based on this fact and requires removing the case to another court with jurisdiction, the plaintiff is not permitted to supplement the evidence to prove the court's jurisdiction. Instead, the case shall be removed to the court having the jurisdiction. In the same way, if the evidence submitted by the defendant when it raises objections to the jurisdiction is held to be inadmissible, the opposition will be dismissed.

The main reason for this is that according to Article 108 of the Civil Procedure Law, the plaintiff shall bring the case to a court with jurisdiction. Where the evidence submitted by the plaintiff cannot prove the court's jurisdiction, the defendant's objection to jurisdiction is sufficiently justified since the plaintiff's claim does not conform to legal rules. Therefore the case shall be removed to the court having jurisdiction. The defendant shall raise objections to the jurisdiction during the period for jurisdictional disputes, and submit the required evidence as well.

The second view also agrees that cases with jurisdictional disputes shall not be given a limitation of proof. The reason for this is that according to the Civil Procedure Law, the plaintiff shall bring the case to a court with jurisdiction. Where the evidence submitted by the plaintiff in its claim cannot prove that the court accepting the case has jurisdiction, the claim will be rejected since it does not conform to legal rules.

The third view provides that in cases with jurisdictional disputes, the litigant may be given a suitable limitation of proof. Especially, when the evidence submitted by the plaintiff in its claim cannot prove that the court that accepts the case has the jurisdiction over the case, the plaintiff shall be allowed to supplement its evidence to prove the said jurisdiction within the limitation. If the plaintiff supplements the evidence, the court is held to have jurisdiction. And if the plaintiff fails to supplement, the objection is well grounded, and the case shall be removed to the court with jurisdiction.    

This author holds that in IP infringement actions with jurisdictional objections, normally it is unnecessary to give a limitation of proof to the litigant to submit evidence proving that the court that accepts the case has jurisdiction over the case.  

Firstly, bringing the case to a court with jurisdiction is one of the legal requirements for the case to be accepted. We may also say that the plaintiff is obligated to bring the case to a court with jurisdiction. When the people's court reviews the claim, it only examines the evidence submitted by the plaintiff in terms of its form. If the evidence fails to prove the court's jurisdiction over the case, the adverse effects will be borne by the plaintiff. For the plaintiff, it is clear whether the court has jurisdiction over the case when it brings the lawsuit. Therefore, it is not advisable to additionally give a limitation of proof to the plaintiff in IP infringement actions with objections to the jurisdiction.

Secondly, for the defendant, the period of jurisdictional disputes usually coincides with the period for it to file pleadings. At least, the defendant shall submit evidence proving that the court that accepts the case has no jurisdiction no later than when it raises objections to the jurisdiction. Practice shows that these two usually happen simultaneously. Therefore, in IP infringement actions with jurisdictional objections, it is neither suitable nor necessary to additionally give the plaintiff a limitation of proof to prove the lack of jurisdiction of the court that accepts the case.

Thirdly, in IP infringement actions with objections to the jurisdiction, where the plaintiff supplements its evidence after filing its claim to prove the court's jurisdiction, or evidence proving the court's lack of jurisdiction after objections are raised by the defendant, and the opposing party agrees to cross-examine it, the court shall decide the admissibility of the evidence based on the cross-examination, and finally determine whether it has the jurisdiction over the case.  
Fourthly, for highly complicated IP infringement cases with objections to jurisdiction, if the court accepting the case finds it difficult to decide its jurisdiction simply based on the evidence submitted, it may grant a certain period of time for the parties to supplement their evidence, so as to prove the court's jurisdiction.

Fifthly, when the limitation of proof is not determined, but one party supplements its evidence before the people's court makes findings on the jurisdiction objections and proves the court's jurisdiction, and the other party does not agree to the cross-examination, where the evidence has a significant effect on the judgment of the court's jurisdiction, the court may decide whether the cross-examination is imperative in accordance with specific conditions and whether or not to accept the evidence, and make its ruling on the jurisdictional objections. 

Sixthly, for highly complicated IP infringement cases with objections to the jurisdiction, even if the litigant has been granted a limitation of proof for the court's jurisdiction, it shall be noted that in principle, the limitation is only applicable in the first instance proceeding. In the second instance hearing where a jurisdictional dispute arises, normally there will be no limitation of proof granted to the litigant.

The last point that shall be particularly emphasized is that the evidence, either supplemented by the plaintiff after his claim proving the court accepting the case has jurisdiction, or supplemented by the defendant after it raises objections to the jurisdiction proving that the court lacks jurisdiction, shall both be considered new evidence. For the plaintiff, new evidence signifies evidence newly discovered or newly formed after the claim occurs. For the defendant, it shall be newly discovered or newly formed after the objection to jurisdiction is raised. Moreover, such discovery or formation is under no influence by the litigant's will. That is to say, if the litigant that will benefit from it retains the discovery or formation of new evidence, the litigant may discover or form this evidence at any time – before or during the claim. He only fails to discover or form it due to negligence or misconception. In such a case, the evidence is not called "new evidence". 

Endnotes

1 Pan Jianfeng, On Limitation of Proof, Politics and Law Forum, 02. 2002, P88

2 See the Civil Ruling (2006) Yi Zhong Min Chu Zi No.8569 of the No.1 Intermediate People's Court in Beijing on August 26 of 2006 and the Civil Ruling (2006) Gao Min Zhong Zi No.1383 of the Higher People's Court in Beijing on November 7 of 2006.
                                                                                 (Translated by Hu Xiaoying)