China: Influences Of Technology Investigator System On Patent Litigation And Solution To The Same

Last Updated: 29 February 2016
Article by Mike Chen

Most Read Contributor in China, September 2016

Recently, Beijing Intellectual Property Court appointed for the first time 37 technology investigators and 27 technical experts. These technology investigators and experts are professionals mainly from the scientific research institutions such as Chinese Academy of Sciences and China Academy of Chinese Medical Sciences, universities and colleges such as Tsinghua University and Beijing University, and enterprises and public institutions such as Patent Office and Beijing Patent Examination Cooperation Center of State Intellectual Property Office, covering the professional technical fields such as photoelectrical field, communications field, medicament field, biochemistry field, material field, mechanical field, and computer field. Although the Highest Court and other courts previously have started to use the technology investigators in particular cases for assistance in examination of the cases, such large-scale appointment of the technology investigators is for the first time. Undoubtedly, the technology investigators may play a more and more important role in the patent litigation in China in the future.

Regarding the legal status of the technology investigators, it is indicated in relevant judicial interpretation and documents that the intellectual property courts are assigned with the technology investigators who are supporting members of the judiciary, responsible for providing technical consultation to the judge for survey of relevant technical facts, and providing technical opinions of examination and other necessary technical assistances, without a voting power to the result of judgment of the case.

Although the technology investigators seem to have no power to make decision about the result of judgment, in fact, the judge may depend on the opinion of the technology investigators in terms of confirmation of technical facts, therefore, the role of the technology investigators should not be neglected in the complex professional technical cases. The patent attorneys may deal with the appearance of the technology investigators by taking the following aspects into account to adjust the litigation strategy:

I. After the technology investigator for the specific case has been determined and notified by the court, the technical field in which the technology investigator is skilled should be found in time, and his relevant background information, such as the cases of which the examination he participated in, theses published, or other professional opinions issued, should be obtained as far as possible. Among the technology investigators recently appointed by Beijing Intellectual Property Court, according to the technical specialties, the technology investigators in the mechanical and photoelectrical fields are 24%, the technology investigators in the material and chemical fields are 28%, the technology investigators in the communications and computer fields are 24%, and the technology investigators in the biological and medicament fields are 24%; according to the organizations to which they belong, 16% of the technology investigators come from universities, 8% scientific research institutions, 19% enterprises, 14% agencies and consulting organizations, and 43% Patent Examination Cooperation Center of Patent Office. It can be seen that the technology investigators are not only different greatly in the technical and professional field, but also from organizations of completely different properties, which doubtlessly will create different influences on the technical problem and the survey of the relevant technical facts.

II. Make full preparation for interpretation and explanation of relevant important technical facts. In the past, if a case was examined by a non-technical judge, the lawyer put the emphasis on presenting a complex problem in simple language or in other forms to the judge in the court trial, which undoubtedly will sacrifice some professional descriptions in the technical details; but for the technology investigators, they will be more concerned about the specific details of the technical problem. Consequently, more professional statement will be preferred for the technical problem, the patent attorneys, during preparation, should focus on understanding of an ordinary person skilled in the art on the prior art in the technical field, problem of common knowledge, understanding of equivalent technical feature, comprehension of the problems such as inventiveness to stress relevant problems for helping the examination of the case.

III. The parties involved also can ask for expert assistants to help themselves in explanation and support of their own technologies. The expert assistant system has not yet been specified in Chinese civil procedural law or judicial interpretation, but it actually has been applied in some cases, for instance, in the case of dispute of unfair competition of Tencent vs. 360, the parties involved asked for relevant technical experts as their own expert assistants to participate in the litigation. In summary, the technical experts having certain influence will be helpful in illustrating the technical problem clearly, and also can make the technology investigators more convinced with respect to the explanation of the professional skill of this party.

Since the technology investigator system has not been applied in the litigation for a long time in China, new issues may be encountered in the practice. Nevertheless, this is good news for the patent litigation with complex technologies involved. The patent attorneys should be adapted to such change during the patent litigation, cooperate with the technology investigators for smooth survey of the technical facts, and guarantee the litigious right of the client.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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