The Research on Intellectual Property Litigation in the Framework of the TRIPs-Focusing on the Analysis and Comparison of the Practice Models of the U.S. and Taiwan
Dr. Shang-Jyh Liu
Dr. Min-Chiuan Wang
|關鍵字:||智慧財產權;專利訴訟;與貿易有關的智慧財產權協定;先行中立評估;定暫時狀態假處分;智慧財產權之專業法院;IPR;patent litigation;TRIPs;early neutral evaluation;injunctive order;special court for intellectual property cases|
|摘要:||關於對智慧財產權之救濟，應包含實體部分與程序部分兩個層次，以往多數之研究係專注於實體的層面，較少涉及救濟程序相關議題之探討。本研究係採取定軸性的比較研究，以世界貿易組織「與貿易有關的智慧財產權協定」(Agreement on Trade-Related Aspects of Intellectual Property Rights，以下均簡稱 TRIPs)中有關智慧財產權司法救濟程序之程序保障、迅速簡要、證據調查、終局救濟、刑事制裁等五大重要架構為軸心，對美國及台灣與智慧財產權有關之司法救濟在法制與實務上之運作模式分別進行探討與比較之研究。
With regard to the remedies of the intellectual property rights, a thorough study should contain a substantive part and a procedural part. Many studies focus on the substantive issues, while few researches have paid attention to the procedural issues in the past. This study uses the comparative method under fixed frameworks – using five of the most important frameworks of the enforcement part of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). These five parts are procedural safeguards, the swiftness and briefness of proceedings, discovery of the evidence, final remedies, and criminal proceedings. This study is a comparative research on the legal systems and the practice models of the intellectual property litigation of the United States and Taiwan. At first, the author will introduce the motive, scope, approach, and framework of this thesis, and then turn to the negotiation process of TRIPS and the important national obligations under TRIPs. The following chapter will explore the specific stipulations and objectives of the enforcement provisions of TRIPs. Under the framework mentioned above, the author will research contemporary intellectual property litigation in the U.S. and Taiwan. Finally, through the survey of academic issues and judicial practices, this study will make a comparison between the intellectual property litigation system of the U.S. and that of Taiwan’s under the framework of TRIPs. Based on these analyses and discussions, and from the perspective of what a judge can do immediately by himself/herself to improve the judicial system, the study draws the following conclusions for Taiwanese law: (1) The judge should reestablish the standard of granting the injunctive order to protect the interests of all the parties and the public. (2) The law should be more precise as to when a protective order should be awarded during litigation and what the content of the order should be. (3) Due to the requirement of speediness and the complexity of intellectual property litigation, the judicial resources should be concentrated on the issues over which the parties are disputing, and thus the court could be able to make a judgment directly, as a matter of law, where no genuine issue of material fact is present. (4) For fear that a party may abuse the right to request for production of documents and real evidence, the moving party must demonstrate that the movant will probably succeed on the merits and provide security. (5) To effectively solve complicated disputes over intellectual property rights, it is advisable for the courts to require the parties to participate in an “early neutral evaluation,” in order to facilitate settlements or at least to narrow the issues. (6) Because the Paragraph 1 of Article 85 of Taiwan’s Patent Law omits some other causes that may cause injury to the patentee, and hence violates the basic principle of compensatory damages, this thesis suggests that this Paragraph should be deleted and the method of calculating damages also be revised. (7) To protect the parties’ rights and help the judge to know the special technology involved in patent litigation, it is essential to establish the mechanism of “patent attorney.” Also, to prevent willful and reckless infringement of valid patents, and to return the injured party to the position before injury, the court should be able to award reasonable attorneys’ fees to the prevailing party where the infringement is willful. (8) To avoid disagreement between two different court systems involving in the same case, and to make more effective use of judicial resources, it is imperative to create a special court for intellectual property cases.
|Appears in Collections:||Thesis|