How can facts be proven in IP litigation?
Evidence presented to a court which assists in its determination of factual issues, is of great importance in IP litigation. Depending on the respective national civil procedure provisions, various categories of evidence may exist, such as real evidence, documentary evidence, and witness evidence. In IP litigation, two particular forms of evidence have been shown to be useful. These forms are expert evidence and consumer surveys. Many courts rely upon expert evidence in IP litigation, in particular in the area of patent litigation. The technical content in many patent cases can be very complex. In these circumstances, expert evidence is a valuable tool for the judge in determining highly specialized and technical issues of fact. However, in a number of countries that have specialized judges/bodies, both in patent law and the technological fields, the average case is often decided without the assistance of an expert. For example, Germany’s use of a specialized judiciary is said to have
