Abstract: This case has been selected as one of the fourteen classic cases concluded by the three intellectual property courts in Beijing, Shanghai, and Guangzhou announced by the Supreme People's Court, and has been rated as one of the "Top Ten Typical Cases of 2015" by the Shanghai Intellectual Property Court
Lingyun Yongran's clients are well-known cross-border software companies, and their software series such as AutoCAD, Photoshop, Acrobat, etc. are used in multiple countries around the world. The customer discovered that a certain exhibition company in Shanghai (the "protected party") had copied, installed, and commercially used the aforementioned computer software without permission. Due to the fact that the computer where the software is installed is located within the business premises of the protected party, in order to protect their own rights and interests, the client has entrusted the legal team of Shanghai Lingyun Yongran Law Firm ("Lingyun Yongran") to provide legal services. In the event that the copyright matter could not be properly handled after negotiations between the two parties, the lawyer team of Lingyun Yongran represented the client to file a pre litigation evidence preservation application with the Shanghai Intellectual Property Court.
The objects of preservation in this case are computer software and data, which have considerable specificity. Firstly, in terms of form, as an intangible object, it needs to be based on an actual carrier - namely a computer. However, the computers that install the software involved in the case are all located within the business premises of the protected party, making it difficult for customers to obtain relevant evidence. In addition, software and data are prone to deletion, alteration, concealment, or transfer. If the preservation process cannot be carried out as soon as possible, the core evidence will face the risk of loss, which will seriously hinder the determination of relevant facts and adversely affect the subsequent rights protection actions of customers.
Nearly 400 computers need to be preserved in this case, and the Shanghai Intellectual Property Court has not yet completed the preservation of computer software evidence since its establishment. In order to ensure the smooth progress of the preservation procedure, the lawyer team of Ling Yun Yongran believes that the attitude of the person being preserved is relatively bad, and even after the lawyer sent a letter to negotiate, they still refused to correct their illegal behavior. Therefore, they may take measures to hinder the progress of the preservation work.
Based on this, the lawyer team of Ling Yun Yongran took precautions and communicated with the court about relevant matters, and submitted relevant lead materials for self investigation, reminding the court of possible situations that may hinder preservation during the progress of the procedure, so that the court can take measures in advance. During the preservation process, the person being preserved obstructed the progress of the work by organizing personnel to obstruct the entry of judicial personnel, temporarily concealing or deleting evidence of infringement. However, the court was prepared under the guidance of the lawyer team led by Ling Yun Yongran, and issued a clear warning to the person being preserved to immediately stop their behavior and indicate the legal risks of their actions. The relevant work was smoothly carried out and the person being preserved was punished.
Based on the strong professionalism and complexity of the objects being preserved, the Shanghai Intellectual Property Court has formulated a comprehensive plan for evidence preservation work and hired technical experts to assist. The responsibilities of each group are clarified through group division of labor and cooperation, and the preservation procedure is orderly promoted through the cooperation of each group and the Shanghai Intellectual Property Court. In the end, the preservation of illegal software and corresponding data downloaded from nearly 400 computers was completed in a timely manner, and the fixation of core evidence undoubtedly laid a solid foundation for customers to further safeguard their own rights and interests.
The first completion of pre litigation evidence preservation for computer software provides a reference for similar cases. This evidence preservation is the first time that the Shanghai Intellectual Property Court has completed pre litigation evidence preservation for computer software since its establishment. This case provides a highly valuable reference for other courts to preserve intangible evidence with similar characteristics that are relatively special; At the same time, it has also played a positive role in exploring enforcement mechanisms that are in line with the characteristics of intellectual property cases, which is beneficial for strengthening the linkage between enforcement and trial, and improving the efficiency and accuracy of enforcement preservation rulings.
The lawyer team of Ling Yun Yongran also played an indispensable role in the progress of the preservation procedure in this case, providing strong support to the court in terms of pre communication, evidence provision, and other aspects. This case also suggests that lawyers can actively provide clues and prompts through the court before the implementation of the corresponding procedures. In addition to assisting in the progress of the procedures, it can also prompt the court to respond to possible emergencies and avoid affecting the work process.
This case has been selected as one of the fourteen classic cases concluded by the three intellectual property courts in Beijing, Shanghai, and Guangzhou announced by the Supreme People's Court, and has been rated as one of the "Top Ten Typical Cases of 2015" by the Shanghai Intellectual Property Court.
