Research Of The Judicial Research Officials System On Patent Litigation

Patent litigation cases often involve professional issues in various fields, it makes difficulties to identify the technical facts of cases. From the observation, each patent country (region) applied a different system to improve the specialization degree of the patent cases. In Germany a unique system of judicial research officials is set up. The judicial research officials not only are responsible for the perceive of the case technical facts, but also involve in judgment on law. It solves the problem of lacking in professional and technical capacity thoroughly. And in Japan, judicial research officials system along with professional committee system is established to jointly assist judges in patent cases of identifying technical facts. In South Korea and Chinese Taiwan, it creates a judicial research officials in order to make up for deficiencies in the professional issues of judges. After Intellectual Property Court was found in Beijing, Shanghai and Guangzhou, China has introduced the judicial research officials system to improve trial efficiency and to promote judicial justice by reference to the judicial research officials system in Japan, South Korea and Chinese Taiwan.Practice in Japan, South Korea and Chinese Taiwan proved that judicial research officials system plays an extremely important role in improving the expertise and authority of the patent litigation trial. However, applying the system, it brings some problems and controversies as follows. It’s difficult to make qualitative judgement whether the investigation report or position paper issued by judicial research officials is part of the evidence, the appraisal report or internal reference. The disputation about whether the survey report made by judicial research officials should be disclosed to the parties or not. Applying judicial research officials system may cause ‘jurisdiction transference’ question. Judicial research officials may make standpoint conflicts in patent administrative litigation cases.Although the judicial research officials system has been established in China, it is still on the exploring stage. And it faces a lot of challenges and problems. The content of Interim Provisions on Technology Ombudsman is not comprehensive;there is no definite rules about judicial research officials hiring conditions and ways in the official document. It doesn’t draw a final conclusion that judicial research officials are allowed to view their opinions to the public and they have not been authorized to participate in conciliation proceedings. The relationship between judicial research officials and judicial expertise, expert jury, expert assessor and other special auxiliaries is still in vague. Judicial research officials can attend a conference without voting rights but be permitted to make comment on it, which makes demands on the adjustment and adaption of existing collegiate panel work rules.To improve the judicial research officials system in China, full experience should be applied from Japan, South Korea, Chinese Taiwan and other regions; defects and deficiencies of current judicial research officials system should be solved. And this system should be adapted to actual situations. This paper puts forward some advice for the innovation of judicial research officials system from four aspects by problem-oriented. It based on the analysis of experience and lesson from pros and cons. It focus on improving Interim Provisions on Technology Ombudsman, and supporting stipulation, the option and coordination of the verification of technology facts, and adding article about the judicial research officials attendance and comment of collegiate panel. Moreover, it focus on constructing a mode that judicial research officials and the expert database of technical working in parallel.