대만의 특허소송제도에 관한 연구

A Study on Patent Lawsuit System in Taiwan

Most of research on the patent litigation system is concentrated to China and Japan and there is lack to the research of Taiwan s system. Taiwan started Intellectual Property Court from 2008, late than Korean Patent Court which was established in 1998. However, in the scope of the jurisdiction, the jurisdiction of Taiwan’s intellectual property court include first instance and second instance of civil action for the protection of intellectual property rights and interest under the Patent Act, Trademark Act, Copyright Act, Optical Disk Act, Trade Secrets Act, Regulations Governing the Protection of Integrated Circuits Configuration, Species of Plants and Seeding Act, and Fair Trade Act, showing more advanced aspect than Korea. Therefore, we have studied Taiwanese patent litigation system to find some useful suggestions for the patent litigation system of our country. The Taiwan Intellectual Property Court has preferential jurisdiction for civil and administrative lawsuits of patent and can treat in a way of “a combination of three trials in one” to civil, criminal and administrative lawsuits of intellectual property rights cases except for patent infringement cases so that it is could maintain consistency in the rulings. Also, technical examination officers who assist judges to technical problem participates from the first instance to enhance the technical understanding of the judge, so that speedy resolution of trial can be made. However, the Intellectual Property Court is not final court of intellectual property cases. In civil and criminal action, the Supreme Court is the final court, and administrative action is finally decided by Supreme Administrative Court. Thus, there is still a problem that the rulings of between Supreme Court and Supreme Administrative Court are not coincide on the same case of litigation. In Taiwan, for appealing a refusal to grant a patent by patent office or invalidation case, one should bring to the case to Taiwan Intellectual Property Office (“TIPO”) first. If one wants appeal to the decision of TIPO, this is then appealed to the Petitions and Appeals Committee (“PAC”) of the Ministry of Economic Affairs (“MOEA”). If one wants to appeal further to the decision of PAC, then can appeal as an administrative litigation to the Intellectual Property Court. Thus, there are two review stages (TIPO, PAC) in administrative stage. In a procedure of Intellectual Property Court, defendant is MOEA who has PAC which decided the petition, and Plaintiff is a patent applicant, or a petitioner of invalidation or a patentee. In Taiwan, invalidation litigation is regarded as an administrative litigation, only administrative office is a defendant, which is different from Korea where the parties in administrative litigation is the same parties who filed invalidation procedure for ensuring their right of pleading. However, this problem is supplemented by allowing the party of invalidation procedure to participate to the administrative litigation as an intervener in Taiwan Taiwan does not have a criminal penalty for infringement of patent right, and there is only civil remedy procedure for patent rights. Criminal cases related to intellectual property rights, such as trademarks and copyrights etc. (except patent rights) are subject to a first instance by each district court. The first court ruling of the criminal case of the district court is appealed to Intellectual Property Court as a second instance except for the juvenile criminal case. In Korea, there is difficulty to consistent judgements on civil, criminal and administrative case of patent infringement because criminal case is not exclusive jurisdiction for the Patent Court. In order to solve these problems, Taiwanese patent litigation system can be good reference to consider.