Burden of Proof in simple words means ‘adequate evidence to prove oneself’. In criminal cases, as every person is presumed to be innocent until the contrary is proved, the burden of proof rests on the prosecutor, unless a different provision is expressly made by statute. In civil cases, the plaintiff is normally charged with the burden of proof, but the defendant may be required to establish certain defenses. In patent law, the patentee or plaintiff, who initiates a law suit, has burden of proof in case of patent infringement.
The burden of proof is defined in section 101 of the Indian Evidence Act, 1872, (act) as below:
- Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
- When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
U/S 104A [Burden of proof in case of suits concerning infringement]of Indian Patents Act, in any suit for infringement of a patent, plaintiff has Burden of Proof. When a patent is infringed, patent owner/plaintiff has to establish the fact that the patent has been infringed. Comparison of product of defendant with claims of Patentee’s patent can establish infringement.
However, where the subject matter of patent is a process for obtaining a new product and the patentee could not establish through reasonable efforts to determine the process actually used by the infringer, the court may direct the defendant to prove that the process used by him to obtain the product, identical to the product of the patented process, is different from the patented process. Hence, in case of process patent infringement, Burden of Proof shifts from plaintiff to the defendant.
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