A Study on the Intervention of the Intellectual Property Office in Intellectual Property Lawsuits
Date Issued
2015
Date
2015
Author(s)
Chiang, Ho-Kuei
Abstract
Article 17 of Intellectual Property Case Adjudication Act provides that the court may order the Intellectual Property Office (IPO) to intervene in a lawsuit while determining the validity of intellectual property rights (IPR). The intervention design and its purpose are quite different from those design and purpose of the other laws in Taiwan. In judicial practice, civil court seldom ordered the IPO to intervene IPR validity in a lawsuit. Even if the IPO was ordered to intervene in some lawsuit, the IPO would not comment IPR validity based on the specific case. This situation doesn''t satisfy legislator''s expectation,—“leveraging the IPO expertise to judge IPR validity"". This is resulted from the ambiguous definition of the IPO’s intervention position by law. Whether the IPO should enter a lawsuit taking a “Intervention Position "", or “Consultation Position"" will be crucial since these two position are mutual exclusive. This thesis will compare the factors, competences and legal effects of these two positions, conclude their pros and cons and make a suggestion to legislators for the IPO intervention provision. ""Intervention Position"" design would be similar to existing intervention system in Taiwan, such as support intervention, independent intervention, intervening action, administrative litigation intervention and domestic proceedings intervention. The essence is that how much interest of third parties involved in the case will influence its competence and legal effects of intervention. According to scholars’ research, intervention position might enhance the third party procedure protection mechanism and create a basis to extend the judgment effects, in order to solve the disputes in one litigation “Consultation Position” design would be a match for the “expert witness” and “amicus curiae” in the foreign law systems. The merit is that the IPO would not be bound by the judgment since their opinion is taken as reference. In conclusion, on one hand, if the IPO would be on intervention position, it could be a part of mechanism to solve the disputes in one litigation. However, the IPO has no interest involving litigant''s lawsuits, the IPO intervention doesn’t conform to intervention position. On the other hand, if the IPO would be on consultation position, it could supply expert opinion to the court, help the court make the correct judgments and integrate court and IPO IPR validity determination reference. However, Taiwanese Code of Civil Procedure doesn''t provide such IPO position. Due to the above restrictions, the IPO’s necessity to enter civil lawsuits should be carefully assessed by legislator.
Subjects
Intellectual Property Case Adjudication Act
Intervention of the Intellectual Property Office
Intervention Position
Issue Preclusion
Procedural Protection
Solve the Disputes in One Litigation
Consultation Position
Expert Witness
Amicus Curiae
Intellectual Property Rights Invalidity Determination
Type
thesis
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