INJUNCTIVE RELIEF OF PATNET INFRINGEMENT IN U.S. AND TAIWAN
Dr. Shang-Jyh Liu
|關鍵字:||定暫時狀態處分;臨時禁制令;專利侵權;法律經濟分析;勝訴可能性;Injunctive Relief;Preliminary Injunction;Patent Infringement;Economic Analysis of Law;Likelihood of Success|
Since the life cycle of the products claimed in the patent lawsuit is short and the competition is very intensive in the related market, the time needed for the final decision of the case is always too long as compared to the lifetime of the products. Therefore, the patentee in Taiwan frequently applies the injunctive relief rendered quickly, and gets the positive judgment with high possibility since judges in Taiwan will not practice substantive examination during the trial procedure of the injunctive relief. Contradictory, the accused infringer may move the court for revocation of the ruling for injunctive relief by providing the court-assessed countersecurity. Such kind of security race not only makes judicial resources wasted but also being helpless for the decision of the final trial. In this study, the suitable implementation method of injunctive relief for Taiwan situation is discussed by studying the company’s strategy of patent lawsuit, analyzing the ruling of the injunctive relief made by courts in Taiwan, comparing the standards used by U.S. courts for the ruling of injunctive relief, and using the economic analysis method. On the basis of the above mentioned analysis, the following suggestions are listed for reference: (1) In the examination of injunctive relief, the necessity of preservation, i.e. necessity for purposes of preventing material harm or imminent danger or other similar circumstances, should be examined first and then the likelihood of success could be examined. (2) Practicing the substantive examination to implement the doctrine of equity. From the economic point of view, substantive examination could make both patentee and accused infringer understand more deeply the opinion of the court, which determine if the lawsuit being continued or not. Besides, with the practice of code of IP court organization and code of IP cases procedure, the issue preclusion could be practiced after the substantive examination is practiced to make use of judicial resource. (3) The judge assigned for the trial of injunctive relief and original trial should be the same, since it can make the patentee being more careful for moving for the injunctive relief and make the substantive examination being more practicable. (4) The burden of proof for moving for the the court for revocation of the ruling for injunctive relief by providing the court-assessed countersecurity should be raised more heavily after the practice of substantive examination. (5) Disclose clearly the reason how judgment is made, especially about the part of likelihood of success. (6) Put heavier burden of proof on patentee for explaining the necessity for purposes of preventing material harm when moving for the injunctive relief. In some cases, e.g. patentee has not used the patent to manufacture products, it is suggested to presume that patentee would not suffer irreparable harm. (7) If the patentee move a motion for injunctive relief for claiming accused infringer not doing something related to the patent, and the accused infringer move a motion for claiming patentee agreeing the accused infringer to do something, these two motions should be consolidated.
|Appears in Collections:||Thesis|
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