Charactieristics of the
Patent Litigation Procedure
In patent and utility model cases, a panel of three judges reviews the records and a technical advisor provides a detailed presentation on technical matters to the panel. Absent special circumstances, a case proceeds to an intensive trial without a pre-trial hearing. Patent and utility model cases that involve specialized technical matters and complicated issues that are difficult to understand, may proceed to a pre-trial hearing. A trial date is generally set for design and trademark cases without a pre-trial hearing because the subject matter and issues in many design and trademark cases are relatively simple compared to those of patent and utility model cases. A presiding judge conducts the trial, and requests the parties to provide detailed presentation on technical matters, using various multi-media equipments, real products, and models. A presiding judge also examines evidence such as documents and witnesses. Through these procedures, technical matters are reviewed in depth. In principle, technical advisors may participate in the trial.
The Principle of Burden of Pleading and Proof
Like civil litigation, the principles of public trial, oral proceedings, and burden of pleading and proof apply to patent court proceedings. In this regard, patent court proceedings are different from the IPT proceedings in that the principle of ex officio examination applies to the IPT proceedings. However, as patent litigation is a type of administrative litigation, the court may, when it deems necessary, examine additional evidence ex-officio without the parties' requests, for example, when the court finds it difficult to determine facts because of insufficient proof established by the parties. The Patent Court achieves the principle of oral proceedings effectively by conducting proceedings in courtrooms equipped with cutting-edge electronic facilities, such as a visual presenter, projection systems, computer networks.
The Participation of Technical Advisors
In patent and utility model cases, upon request by the court, technical advisors provide consultation at any time throughout the trial. If the court determines it is necessary, technical advisors may participate in pre-trial and trial hearings and may examine the parties as well as witnesses on technical matters with the permission of a presiding or associate judges. During pre-trial or trial hearings, the technical advisor sits on the far-left side of the bench. Furthermore, he/she may provide his/her opinions on technical aspects of a case during the court's deliberation process.
The Representation by Patent Attorneys
In accordance with the Article 8 of the Patent Attorneys Act, patent attorneys, in addition to lawyers, are permitted to represent the parties in proceedings to vacate the IPT decisions in the Patent Court. Patent attorneys cannot represent parties in courts other than Patent Court even in intellectual property cases in other kinds of intellectual property cases, but there are discussions to extend the scope of patent attorneys' representation.
The Effects of the Judgment
The Patent Court reviews decisions or orders issued by the IPT. Therefore, an appellant's appeal seeking to vacate the IPT decision or order is dismissed if it is found to be unjustified and without merit. Conversely, the court may declare the decision or order to be void if the appellant successfully establishes his/her case.
If the Patent Court's judgment that vacated the IPT's decision or order becomes final, the case would be remanded to the IPT. Then, the IPT must conduct proceedings for the case again and issue a new decision or order. As the Patent Court's grounds for a judgment to vacate the IPT's decision or order are binding on the IPT, the IPT's new decision or order must not be inconsistent with the reasoning of the Patent Court's final judgment.
The Notification of Appeal and Transmission of Judgments to the IPT
When a notice of appeal is filed, the Patent Court shall notify, without delay, the IPT. When an inter-partes case has been finally disposed of at all instances, the Patent Court shall transmit, without delay, a certified copy of each judgment to the IPT