IP Views

Forensic Evidence in Intellectual Property Cases

September 07, 2011
by: Jamie Solivas

As one of the amendments introduced by Office Order No. 186, series of 2010 to the Rules and Regulations on Administrative Complaints for Violation of Laws Involving Intellectual Property Rights (IPV Regulations), the Bureau of Legal Affairs of the Intellectual Property Office of the Philippines now allows the presentation or submission of forensic evidence which may be admitted and given weight. At first glance, it seems puzzling how forensic evidence figure in intellectual property cases, as the terms “forensic evidence” and “forensics” are typically associated with matters like finger printing, ballistic tests, and DNA sampling. However, stripped of its stigma from movies and television dramas, the word “forensics” actually means “to bring to the court.” Forensics is simply a methodology or process of using scientific knowledge for recovering, collecting, analyzing, and presenting evidence to the courts. (see Richard Nolan, Colin O’Sullivan, Jake Branson, and Cal Waits, First Responders Guide to Computer Forensics, Cert Training and Education, March 2005)

Hence, as applied to cases of intellectual property violations, forensic evidence would refer to such evidence recovered, collected, analyzed and brought to court using scientific knowledge such as to maintain the integrity and credibility of such evidence. To cite a simple example, in a case of copyright infringement where the accused illegally and without authority downloaded a copyrighted material from the Internet, digital/computer forensic evidence would refer to such latent evidence recovered through scientific means from the accused’s computer. This digital/forensic evidence could be as obvious as the soft copy of the copyrighted material itself which the accused had downloaded, as well as the file sharing software that the accused might have installed and used to download the copyrighted material. It could also be certain cache information like the browsing history which would indicate the file sharing website where the copyrighted material was downloaded, or log-in information which would show the username and password used to log onto the file sharing website and download such copyrighted material, or the internal download log which would show when the copyrighted material was downloaded.

In an actual case, a search and seizure team composed of attorney’s, computer forensic specialists, private investigators and United States Marshall entered certain locations covered by a search warrant for counterfeiting. The investigators and attorneys who searched the warehouses and offices were only able to seize three counterfeit products and two cases of the “confusing” merchandise. However, the computer forensic specialists who had searched several computers, cellular phones, fax machines, telephone systems and voicemail systems were able to dig up a mountain of crucial information. The digital forensic evidence they uncovered allowed them to trace more locations, discover e-mail communications between the distributor and his sources for counterfeit merchandise in China mentioning shipping dates and quantities of past orders, reconstruct full financials and shipping manifests, establish the stock on hand of counterfeit merchandise in several retail outlets and determine all the suppliers of the counterfeit merchandise. (http://www.newyorkcomputerforensics.com/pdfs/casestudy_intellectualproperty_and_brandprotection.pdf)

But as with other evidence, forensic evidence must be obtained and preserved in a manner that maintains its integrity and credibility. An illegally obtained search warrant would easily invalidate any forensic evidence obtained thereby. Even if the forensic evidence is obtained through a legally issued and valid search warrant, if there is crack or any irregularity in the chain of custody, then the said evidence may also be invalidated or given no weight. It may also be necessary to present a digital forensics expert to prove whether the forensic evidence presented is credible or is in fact evidence of the facts sought to be proven.

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