Introduction
Current IP case trial procedure
Timescale
Revised model
Comment
The IP Court was established on July 1 2008 to improve the quality of IP trials, enhance efficiency of the trial process and ensure consistent judicial opinions. On the same day, the IP Case Adjudication Act took effect, marking an important transition in the IP litigation system in Taiwan.
In contrast to traditional courts, the IP Court is open and responsive to public criticism and suggestion. It does not hesitate to make its internal guidelines public, even during drafting and discussion. Shortly after its establishment the court published the Model of IP Case Trial Procedure, as promulgated by the Judicial Yuan. The model explains the standard trial procedure and not only serves as reference for IP judges, but also provides parties with an overview of the litigation procedure.
On March 12 2010 the IP Court held a seminar on trial models, inviting lawyers, patent attorneys and patent agents to exchange opinions. Based on discussions at the seminar, the court modified its IP case trial procedure model. It posted a revised version on its website on March 23 2010.
Current IP case trial procedure
According to the current model, the first instance of a patent infringement lawsuit involves two stages - procedural examination and trial - which are handled respectively by the examination tribunal and the trial tribunal.
Procedural examination process
When a case is filed, the examination tribunal checks for compliance with all procedural requirements and asks the plaintiff to submit supplements or corrections, if necessary. The examination tribunal then issues a notice to the defendant requesting it to submit a defence brief within a specified period (the first-stage brief exchange procedure). The tribunal subsequently issues notices to the plaintiff and defendant requesting them to submit a summary brief for organising the issues and relevant arguments presented so far (the second-stage brief exchange procedure). The procedural examination process is concluded on completion of these brief exchange procedures, which generally takes between two and four months.
Trial process
The case is then transferred to the trial tribunal. The judge in charge holds several hearings to investigate the relevant issues and hear debate. Normally, the first hearing is a 'preparation process' to organise the issues and schedule a timetable for the subsequent trial. Depending on the case, the judge thereafter conducts one to two (or possibly more) debate hearings to investigate the issues of patent validity, infringement and damages. In general, the trial process takes approximately three to six months.
In accordance with the model, the IP Court normally concludes the first instance of a patent infringement lawsuit relatively quickly. In the best-case scenario, litigation is concluded within six months, while even complicated cases may take less than a year. This is a significant improvement in efficiency over traditional courts, which commonly took two or three years to complete the trial of a single instance for a patent infringement case. However, such an abbreviated procedure has triggered some concerns.
To further improve trial quality and gain full trust in its judgments, the IP Court held another seminar with lawyers, patent attorneys and patent agents on November 5 2010. In addition to eliciting comments and suggestions, the court reported on a draft revision of the model. The most important change in the proposed revision involves additional preliminary proceedings, in which the court would hold a debate hearing specifically for claim construction before investigating patent validity, infringement and damages. After this hearing, the court would disclose its written opinion or decision with respect to claim construction. Furthermore, before investigating the question of damages the court would render an intermediate judgment on patent validity and infringement, thereby enabling the parties to evaluate the chance of success and the possibility of settlement before proceeding to investigate damages.
This draft revision is still under consideration. The IP Court has stated that it will seek further public feedback and conduct internal discussions on necessary adjustments before announcing a final version. The way in which the model evolves and eventually affects trial efficiency and quality therefore remains to be seen.
For further information on this topic please contact Hsiu-Ru Chien at Lee and Li Attorneys at Law by telephone (+886 2 2715 3300), fax (+886 2 2713 3966) or email ([email protected]).