Civil Procedure of Patent Litigation with the Dual Aims of Fairness and Efficiency (I)

Zhu Li: Civil Procedure of Patent Litigation with the Dual Aims of Fairness and Efficiency (I)

       All litigations including patent litigations in all countries should achieve the dual aims of fairness and efficiency. In the process of achieving these goals, we will find that there are sometimes not many contradictions between fairness and efficiency, but sometimes we may face some. The complexity of patent technologies makes the determination of facts a more time-consuming process. How can patent proceedings be “fast and good”? How can we improve competitiveness and attractiveness of China's patent litigation system? In the current situation, there are three phenomena worthy of our consideration.

First, stage control, as Professor Cui Guobin already mentioned above. Take Ford as an example. It  created a modern management system, which divided each production line into different stages. Each stage has highly standardized operating procedures to check every part and leave qualified ones to the next stage.

Second, mandatory evidence discovery.

Third, instant judgment of disputing issues. With the continuous discovery of the parties’ evidence, some of the litigation issues may meet the requirements of judgment in some cases. Under such a circumstance, an immediate judgment can be given to conclude the case in time.

These are three trends of various countries to reform their patent litigation systems. Here's how the other countries are reforming.

Stage control

There are several steps of stage control: first, it divides the proceedings into several separate stages; then, every stage is subject to strict management and control. This is not only a task of the court, but the parties and lawyers should also coordinate with the court to control the proceedings. When specific issues meet certain conditions, judgment will be given immediately.

1. Civil procedure of patent litigations in the United States

As shown in Figure 1 of the civil procedure of the US patent litigation, the green box shows the point that a party fails to answer the lawsuit, and the yellow box indicates that the parties can file a motion before evidence discovery and trial or during the proceedings, and the court can make judgment more timely based on these motions. There are several points worthy of our consideration: first, the parties can negotiate with the court for the schedule; second, the mandatory pleading procedure requires the court to identify issues as soon as possible; third, evidence discovery is a responsibility of the parties that have nothing to do with the burden of proof to disclose the evidences, which will ensure that the court will ascertain the facts; fourth, Markman hearing can immediately resolve disputes concerning interpretation of claims; fifth, different motions can be filed at different stages.

2. Civil procedure of patent litigation in civil law countries

First, the court negotiates with the parties regarding schedule of the case.

Second, pleading procedures are becoming ever stricter. For example, the amendment to the Japanese Civil Procedure Law in 2001 introduced information request system, requiring the other party to make a written response within a certain period of time to the matters necessary for claim preparation or proof, and the other party has the duty of answering honestly. To a certain extent, this is a kind of mandatory pleading. Both Germany and France require a written pleading, which is of great importance. Almost all litigations are based on written materials such as prosecution and pleading, and trial mainly serves as an opportunity for judges to know whether they understand written materials submitted by the parties and whether the parties understand the request or pleading.

Third, there is a strict schedule. In the Munich courts in Germany, for example, no extensions are allowed during the pleading period, except for some good causes, and extensions can only be allowed once for up to seven days. The other party does not receive an extension automatically.

Fourth, expert opinions are not always needed. Experts are only needed under certain circumstances, and the court will designate an expert on which the parties can give an opinion. Once an expert is appointed, the expert needs to go to the court and answer the questions of the parties in court. This expert cannot add comments in written forms after the court.

Fifth, the judge promptly discloses his own judgment, because this plays an important role: first, disclosing the judge’s understanding of this issue allows the parties to express their own opinions on the issues of concern during the trial; second, the judge’s opinions can help the parties assess their chances of winning. Such a timely disclosure of the judge’s opinion makes subsequent procedures targeted and makes it possible for the case to be mediated and closed. In Germany, South Korea and other countries, judges can explain to the parties their temporary opinions on such issues as interpretation of claims and the possibility of winning in the first hearing.