Charactieristics of the
Patent Litigation Procedure
Concentrated Trial
In patent and utility modelcases, a panel of three judges reviews the records and atechnical advisor provides a detailed presentation on technical matters to the panel. Absent special circumstances,a case proceeds to an intensive trial without a pre-trialhearing. Patent and utility model cases that involve specialized technical matters and complicated issues that aredifficult to understand, may proceed to a pre-trial hearing. Atrial date is generally set for design and trademark caseswithout a pre-trial hearing because the subject matter andissues in many design and trademark cases are relativelysimple compared to those of patent and utility model cases. Apresiding judge conducts the trial, and requests the partiesto provide detailed presentation on technical matters, usingvarious multi-media equipments, real products, and models. Apresiding judge also examines evidence such as documents andwitnesses. Through these procedures, technical matters are reviewed in depth. In principle, technical advisors mayparticipate in the trial.
The Principle of Burden of Pleading and Proof
Like civil litigation, theprinciples of public trial, oral proceedings, and burden ofpleading and proof apply to patent court proceedings. In thisregard, Intellectual Property High Court proceedings are different from the IPT proceedings in that the principle of ex officio examinationapplies to the IPT proceedings. However, as patent litigationis a type of administrative litigation, the court may, when itdeems necessary, examine additional evidence ex-officiowithout the parties' requests, for example, when the courtfinds it difficult to determine facts because of insufficientproof established by the parties. The Intellectual Property High Court achievesthe principle of oral proceedings effectively by conducting proceedings in courtrooms equipped with cutting-edgeelectronic 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 courtdetermines it is necessary, technical advisors may participatein pre-trial and trial hearings and may examine the parties aswell as witnesses on technical matters with the permission ofa presiding or associate judges. During pre-trial or trialhearings, the technical advisor sits on the far-left side ofthe bench. Furthermore, he/she may provide his/her opinions ontechnical aspects of a case during the court's deliberationprocess.
The Representation by Patent Attorneys
In accordance with the Article 8 of the Patent Attorneys Act, patent attorneys, in addition tolawyers, are permitted to represent the parties in proceedingsto vacate the IPT decisions in the Intellectual Property High Court . Patent attorneys cannot represent parties in courts other than Intellectual Property High Court even in intellectual property cases in other kinds of intellectual property cases, but there are discussions toextend the scope of patent attorneys' representation.
The Effects of the Judgment
The Intellectual Property High Court reviews decisions or orders issued by theIPT. Therefore, an appellant's appeal seeking to vacate theIPT decision or order is dismissed if it is found to beunjustified and without merit. Conversely, the court maydeclare the decision or order to be void if the appellantsuccessfully establishes his/her case.
If the Intellectual Property High 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 issuea new decision or order. As the Intellectual Property High Court 's grounds for ajudgment to vacate the IPT's decision or order are binding onthe IPT, the IPT's new decision or order must not beinconsistent with the reasoning of the Intellectual Property High Court's final judgment.The Notification of Appeal and Transmission of Judgments to the IPT
When a notice of appeal is filed,the Intellectual Property High Court shall notify, without delay, the IPT. When aninter-partes case has been finally disposed of at allinstances, the Intellectual Property High Court shall transmit, without delay, acertified copy of each judgment to the IPT