專利侵權訴訟於智慧財產案件審理法施行一年後之問題討論

A Study on Patent Infringement Litigation after Implemented Intellectual Property Case Adjudication Act for One Year

智慧財產權案件之審理，與一般傳統案件相較，有其特殊性，又因智慧財產權有關產品之市場更替週期短暫，因此其迅速審理之要求，具有等同於裁判正確性之重要性，故我國於自九十三年二月起由司法院開始研議設立智慧財產法院，經立法院於九十六年三月五日以及一月十九日先後三讀通過《智慧財產法院組織法》以及《智慧財產案件審理法》，司法院則於九十七年五月六日分別以院台廳司一字第 0970010117 號令及第 0970009972 號令明定於九十七年七月一日開始施行。智慧財產法院亦於同日開始掛牌運作，使我國智慧財產法制邁入新的里程碑。《智慧財產案件審理法》施行及智慧財產法院掛牌運作，某程度解決先前專利侵權訴訟之問題，惟其施行滿一年以來，實務運作上產生若干問題，實值注意，諸如：專利侵權訴訟案件第一審以及第二審均由智慧財產法院管轄，有可能發生認定事實之獨占，以及統一法律見解，而影響當事人之審級利益之問題，或法官員額不足，發回更審後之處理問題，或目前全國僅設立一法院，影響當事人就審便利性之問題，或技術審查官對於專利案件之審理或證據保全程序中可能產生之問題，或智慧財產法院審理專利侵權案件速度似乎矯枉過正，而影響當事人實體上權益之問題，以及《智慧財產案件審理法》第十六條規定對於專利有效性處理上，可能產生之問題等等，本文藉此提出上述問題，冀藉此拋磚引玉，共謀我國專利訴訟及相關行政制度之完善。

Comparing with general legal cases, the adjudication on intellectual property(IP) cases possessed uniqueness; in addition, the life-cycle of IP-related products is very short in the market; therefore, the requirement for prompt adjudication on those cases has the same importance of making correct judgment; therefore, Taiwan Judicial Yuan has planned and drafted to establishthe Intellectual Property Court since February 2004; moreover,《Intellectual Property CourtOrganization Act 》 and 《Intellectual Property Case Adjudication Act》have been approved after completing the Third Reading procedure in Legislate Yuan respectively on March 5th, and January 19th, 2007; as a result, Judicial Yuan has promulgated these two orders:Yuan-Tai-Ting-Si-Yi-Tzi No. 0970010117 and No. 0970009972 on May 6th, 2008, to execute those aforesaid Acts on July 1st, 2008, as well as the IP Court has formally operated at the same day, which made Taiwan’s IP legal system to step into a new milestone.The implementation of《Intellectual Property Case Adjudication Act》and the operation of IP Court have solved the related issues of aforesaid patent infringement litigation in terms of certain level; however, it has been one year since its implementation, and there existed some issues for the practical operation which shall be carefully noticed, such as: since the first and second instances of patent infringement litigation are governed under the jurisdiction of IP Court, it may have possibly occurred problems of the monopoly on fact identification and the unified legal opinions that will further affect the trail benefit for the litigant; or insufficient prescribed number of judges and the follow-up disposal after remanded; moreover, since it is the only IP Court in Taiwan so far, it will affect the convenience for litigant taking litigation and trial; or the problem that occurred in the process of hearing; or the preservation of evidence for technical examination officers to the patent cases; or the speed of IP Court to hear the patent infringement cases seems to be overcorrected that will affect the substantial benefits and rights for the litigant; and the regulation of the Article 16 of《Intellectual Property Case Adjudication Act》 for disposing theissues of patent validity that may also have yielded some problems. In accordance with abovementioned problems and issues, this study is expected to attract more follow-up experts orresearchers to improve the patent litigation and related administration systems in Taiwan.