Newsletter
PATENT INFRINGEMENT AS-SESSMENT – EXPERT OPINION REGULATIONS
To enhance judges' knowledge outside the field of law, assist them in the discovery of facts, and facilitate the handling of cases, the Judicial Yuan, on 1 May 2000, announced the Provisional Regulations Governing the Provisions of Expert Opinion to Trial Courts, which took effect im-mediately. The main content is as follows:
When hearing cases relating to intellectual property, science and technology, medical treatment, construction, environmental protec-tion and pollution, securities and finance, marine matters, employment, family proceedings, sex-ual offences, traffic, juvenile criminal proceed-ings etc., a district court or juvenile court may, by agreement of the parties or ex officio, hear the opinion provided by experts.
1.Based on different categories of cases, courts shall select and list persons within their territorial jurisdiction, who by virtue of their special knowledge, skills or work experience are suitable to provide expert opinion. A list of such experts shall be provided to judges and parties for their reference when selecting experts.
2.Where the court deems it necessary, or by agreement of the parties, a person not listed may be selected as an expert.
1.One expert may be selected to provide opinion to the trial court by agreement of the parties. Where the parties make no such selection, the court may make one. Where the parties object to the selection, the court shall make a new selection, to a maximum of three such selections. If the parties still object, it shall be deemed that the parties agree not to have an expert to provide opinion to the court.
2.After a selected expert has expressed opinion on the concerned matter before the court, the parties may not raise any objec-tion against the expert selection. However, the above shall not apply in case of a vio-lation of Article 4 (bars to provide expert opinion) or Article 7 of the Regulations (disqualification due to conflict of inter-ests), or if there is other concrete evidence showing that the selected expert is unsuit-able to serve as an expert. Under the above circumstances, the court may make one more expert selection. If the parties still object, it shall be deemed that the parties agree not to have an expert to provide opinion to the court.
1.Where the parties agree to have an expert to provide opinion to the court, such agree-ment shall be evidenced in writing, or it may be made verbally on the date desig-nated for the court hearing and entered in the record by the court clerk.
2.An agreement by the parties to have an expert to provide opinion to the court shall be made before the completion of oral ar-guments. But where the court deems that the facts are clear and there is no need to hear expert opinion, it may choose not to seek one.
3.Except as otherwise provided, the court shall notify the selected expert to appear on the designated day, and hear his opinion. Where the appointed expert cannot be no-tified or fails to appear after notification, the court may, after consulting the parties, make a new selection or proceed with the trial of the case directly.
4.An expert selected to provide opinion to court shall provide his professional opinion to the best of his conscience and profes-sional judgment, but shall not participate in the determination of issues of fact or law. Where the court and the parties agree to the expert opinion so provided, the judge shall inquire parties on whether they so agree, and the court clerk shall enter their agree-ment/opinion so inquired into the record. However, for criminal prosecution, it shall be immediately entered in the record after agreement by the defendant and inquiry by the judge.
5.Where the expert opinion is not agreed upon by the parties, the court, as it deems it necessary, may examine the expert as an assessor witness or an assessor.
6.With approval of the court, a selected ex-pert may review the files and evidence on files to the necessary extent.
A selected expert shall decline an appointment in any of the following circumstances:
1.He or his spouse, ex-spouse or francée is or was a party to the case before the court;
2.He is or was related to a party to the case be-fore the court within eight degrees of con-sanguinity or five degrees of affinity;
3.He or his spouse, ex-spouse or francée stands in a relationship of joint obligee, joint obligor or debtor to a party to the case before the court;
4.He is or was the guardian, head of family or family member of a party to the case before the court;
5.He is acting or has acted in the case before the court as a representative, defense attorney or assistant ad litem to any of the parties;
6.He has acted as an assessor or witness in the case before the court; or
7.In the case of a retrial, he provided an expert opinion or participated in the investigation or adjudication of the previous proceedings.
A selected expert may claim daily and travel expenses, and request compensation. The method of calculating the expenses and com-pensation and their amount shall be determined by the Judicial Yuan. Such expenses and com-pensation shall be borne by the National Treas-ury.
A selected expert should keep secret any confi-dential professional, business or private personal information of another person, which becomes known to him through his participation in the court proceedings.
Patent infringement cases always involve de-termination of technical facts. After the regula-tions took effect, courts and parties to patent in-fringement cases may seek expert opinion as necessary. Lee and Li will closely follow how the regulations are implemented by the courts, and report developments to our readers as ap-propriate.