Practice Areas | Legal Enforcement | Q & A
D. Interim injunctions 6. After an interim injunction application do the parties have to go on to a full trial?
Not exactly, the applicant of a preliminary injunction is not required to file a principle action on the ground of patent infringement. However, in the event where the principal action is yet to be initiated, the court issuing the preliminary injunction ruling shall, on the defendant’s motion, order the patentee to initiate the action within a designated period of time.
D. Interim injunctions 7. How is an injuncted party compensated if wrongfully injuncted?
According to Article 538-4 of the Code of Civil Procedure in reference to Articles 533 and 531, the patentee shall compensate the injuncted party for any losses incurred from the preliminary injunction, if a preliminary injunction ruling is revoked either by reason of being improper ab initio, or by reason of not instituting a proceeding within a designated period of time, or by the reason where the grounds for preliminary injunction has vanished, or the judgment finding the patentee to be the defeated party in the principal action has become final and binding. However, Article 538-3 of the Code of Civil Procedure, the court may lessen or exempt such compensation liability if the patentee can prove his/her non-negligence.
E. Procedural steps to trial 1. Does the court set a timetable for steps in the case to trial?
Yes. In order to maintain the Court’s efficiency, the IP Court adopts a trial scheme for civil cases concerning patent infringement. The timetable is as follows:
(a) Filing a complaint to acceptance of a case
The first step is that after the complaint is received and reviewed by the reviewing board, there are 30 days to check the formality of the complaint. If the formality of the complaint is correct, a first court order will be served to the defendant requiring submission of a response.
If the defendant raises a procedural issue, both parties will be ordered to file a brief regarding the issue and exchange the briefs, or the court will proceed with the preparation procedure. The court will issue an interlocutory decision within 60 days after the defendant raised a procedural issue. Then, the case will either be dismissed for the procedural issue, transferred to another court for proper jurisdiction, or enter preparation procedure.
If the defendant raises a substantive issue after receiving the court’s first order, there are 30 days for the court’s consideration on whether to assign the case to a technical examiner before the second court order.
(b) Preparatory procedure
In preparation procedure, a second court order will be served to the Plaintiff requiring submission of a brief summarizing the issues at dispute after the defendant submitted the response. 30 days later, a third court order will be delivered to the defendant requiring submission of a brief summarizing the issues at dispute. The procedural examination will be finished within 30 days after the defendant’s submission of the brief and the case will then distributed to one tribunal. The court manages the preparation procedure, summarizing the issues and planning how to conduct the trial.
There are about 60 days before the court holds the first oral argument. Within such 60 days, the parties are required to submit briefs explaining all arguments for the issues and evidence used for each of the arguments. The briefs will be delivered to the other party and the court.
(c) Oral arguments (Trial)
A trial is termed an oral argument under the Code of Civil Procedure.
The first oral argument is being held. At this stage the validity issue regarding the disputed patent is adjudicated while the Court will also look at the issue of claim construction.
Then, the court will hold the second oral argument in 60 days after the first oral argument. Within the 60 days, the same briefs and evidence are required from both parties.
If necessary, the court will hold the oral arguments as the case may need, and the same briefs and evidence from both parties are similarly required. Then, a judgment is made and the case is over.
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