Research On Expert Aid System In Intellectual Property Litigation

The intellectual property litigation tends to be associated with the most advanced technology achievements of a certain field. The related professional knowledge is required for clarifying the controversial focus of the case. However, in the practice, the judge is the expert of the legal field. Some parties may not have the required professional knowledge, which brings certain difficulty to the litigation. To solve the special problems involved in the case, our domestic evidence provision and civil procedure law have made corresponding stipulation on the expert assistant system. Outline of the National Intellectual Property Strategy clearly points out that it is necessary to establish and improve the system of the expert’s participation in the intellectual property litigation aiming at the strong professional feature of the cases about intellectual property. In the judicial practice, the courts in different places make exploration aiming at the expert assistant system in the intellectual property litigation. This paper is divided into four parts. It expounds the expert assistant system of the intellectual property litigation.The first part is to introduce the intellectual property litigation and expert assistant system. Starting from Holley Communications’appeal to Samsung Corporation on infringement of patent (TOP10intellectual property cases released by Supreme People’s Court in2012), it introduces the properties of the intellectual property litigation, titles of the expert assistant, value and significance of the expert assistant’s participation in the intellectual property litigation.The second part is divided into two sections:Anglo-American law system and civil law system. It introduces the specific foreign system about the expert’s participation in the intellectual property litigation. The Anglo-American law system mainly introduces the American expert witness system and expert jury, and British technical juror system. Up to now, the expert witness system of the common law system has been relatively complete. Some excellent experience is worth referring by our domestic expert assistant system. The civil law system mainly introduces the German technical judge system, Japanese inquisitor system and professional committee member system, and Taiwan technical referendary system. Germany and Taiwan strictly restrict the qualification of the experts, so as to ensure them to put forward objective and actual opinions. Through the comparison on the system provisions of both law systems towards the expert’s participation in the intellectual property litigation, it can be seen that the expert plays a vital role in such litigation no matter for which law system. That the expert participates in the litigation can make the solution to the disputes become fair in essence, and provides certain reference for the improvement of our relevant systems.The third part mainly analyzes the current status and existing problems of our domestic expert assistant’s participation in the intellectual property litigation. Since1991, China has started to carry out the practice of the expert assistant system in such litigation, and the courts of each place have proceeded with the corresponding trial in the practice. Through the analysis, it can be seen that our provision on the expert assistant system is relatively ambiguous, and there is some defect in the system. For instance, there is no uniform provision on the initialization procedure, case scope applicable to the expert assistant, status, qualification, rights, obligations, responsibilities, opinion adopting standard of the expert assistant. Besides, the practice is different from each other.The fourth part is about the suggestions for improving the expert assistant system of the intellectual property litigation. According to the analysis on the expert participation system in the extraterritorial intellectual property litigation, and starting from our national conditions, it clarifies investigation on the qualification of the expert assistant mainly from the professional knowledge, practice ability and practice experience, and moral. Through the distinction with the authentication system, it clarifies the case scope of the expert assistant’s participation in the intellectual property litigation. Endow the parties with certain relief right so as to cope with the court’s refusal to inform the expert assistant to participate in the litigation; meanwhile, to solve the difficulty in case trial resulting from the parties’unwilling to employ expert assistant, the court is allowed to directly employ expert assistant to participate in the litigation. The fee is undertaken by the unsuccessful party. Moreover, it makes further clarification that the expert assistant should undertake the obligation of putting forward actual suggestions and keeping confidential about the commercial secret acquired during the participation in the litigation while enjoying the right to know and gaining the right to get payment. The expert assistant should undertake the corresponding responsibility upon the violation of required obligation.