Research On The Application Of Technical Investigation Opinions In Patent Litigation

Technical investigation opinions are analytical materials made by technical investigators on technical issues in intellectual property litigation based on special technical knowledge based on the needs of judges.Due to the inevitable limitations of technical knowledge of judges,it is difficult to conduct fact determination independently,and technical investigation opinions play a key role in assisting judges in the process of fact determination,and there are still some problems in application that need to be resolved urgently.It is necessary to conduct research.This article takes patent cases as the breakthrough point,normative analysis method as the main research method,combined with the latest judicial interpretation,discusses the problems in the application of technical investigation opinions,and proposes perfect suggestions.First of all,the first chapter selects typical patent cases to raise questions,and analyzes the role of technical investigation opinions in the case.Secondly,in the second chapter,the legal basis of the applicable technical investigation opinions is discussed.There is little research on this issue in the academic field.Combined with the procedural law,this article believes that its legal basis is inseparable from the theory of the discovery of truth in the civil litigation authority litigation system,and technical investigations are applied.The opinion is the need to discover the truth in the functional litigation system,which effectively makes up for the defects of the functional litigation system in fact finding in intellectual property technology cases.Third,chapter III introduces the legal issues arising from the application of technical survey opinions and their causes,such as the formulation,disclosure,supervision,transfer of judicial power,and legal liability.This article believes that the technical survey opinions are not made public,or violate the principles of debate,open trial,principle of direct speech,and raids by referees;technical survey opinions are not supervised,which will affect the scientific nature of the technical facts.Finally,Chapter 4 proposes perfect suggestions for the above problems.First,in terms of the form of making technical survey opinions,it can be divided into oral and written forms,and a mechanism for multiple technical investigators to jointly make should be established.Second,in terms of the disclosure of technical survey opinions,this article believes that it can be distinguished according to the form of making,that is,the written technical survey opinions should be disclosed,and the analysis process should be disclosed without disclosing the conclusions.Time and other issues were discussed.Third,in terms of the supervision of technical investigation opinions,this article believes that the main body of supervision should be judges,forming a supervision method in which the technical investigation room assists judges with supervision,and the technical expert committee assists judges with supervision.It also believes that the technical expert committee needs to be further developed.Broaden its coverage.Fourth,to make recommendations for preventing the transfer of judicial power,a mechanism for distinguishing factual issues and legal issues can be constructed,and it is mentioned that the "pragmatic approach" can be used to distinguish,in addition,the disclosure and supervision of technical investigation opinions discussed in the previous section can be combined.The mechanism can also play a preventive role.Fifth,in terms of the legal responsibility for issuing technical investigation opinions,this article believes that technical investigators should bear certain responsibilities after the written technical investigation opinions are adopted,rather than all judges.