An Exploration On Technical Facts Identification System In China's Intellectual Property Court

Technical facts are the core facts in the intellectual property lawsuit.They are hard to investigate and identify,which has always been a challenge to the intellectual property case trial.As the intellectual property case trial becomes more professionalized in China,intellectual property special court has been set up in Beijing,Shanghai and Guangzhou in 2014,and afterwards,technical investigator system has been introduced.Intellectual property case trial in China has formed a pattern in which five technical fast identification systems-technical investigation,technical counselling,expert jury,technical evaluation,expert auxiliary-coexist.These five systems have their own inherent defects,and they lack coordination among each other,therefore conflicts emerge quite often.Identifying technical facts accurately and efficiently is the substantial need to raise the quality and efficiency of intellectual property case trial.Technical investigator has its own advantage,but it lacks participation in lawsuit;expert auxiliary is not neutral;technical evaluation is expensive and difficult to initiate,and the duration is too long drawn out;experts in technical counselling don't participate the judicial proceedings,and parties can't exercise their procedural right such as withdrawal challenge;expert jury lacks prevention system in case of omission and ultra vires.Their common cause is that there lacks systematic legal regulation on legislative basis,and coordination mechanism on jurisdiction basis.Taking lessons from the experience of both typical civil law and common law countries,we should be stricter on appointing technical facts examiners,establish diversified technical facts identification system,and improve the existing five systems.That is,increase the participation of technical investigator in lawsuit,improve the efficiency and quality of technical evaluation,regulate expert jury system,maintain expert auxiliary's neutrality,and establish prevention system from expert jury' s ultra vires.Furthermore,we should explore to establish a diversified system in which technical investigator acts as the core and flexibly coordinates with technical evaluation,expert witness,expert jury and expert auxiliary systems according to the needs of cases,in order to solve the problem of technical facts identification in intellectual property cases.