期刊刊名：NTUT Journal of Intellectual Property Law and Management 　 卷期：2卷1期

篇名出版日期：2013年6月1日

作者：Fa-Chang Cheng, Judge Chun-Lin Li

語言：English

關鍵字：Patent-validity, litigation-economy, burden of persuasion, defensive issue preclusion, offensive issue preclusion

被點閱次數：1次

閱讀時間：23sec

摘要：
The objective of this article is to resolve the possible waste of judicial resources in making patent-validity disputes in civil litigation, which is a major source of conflict in the modern intellectual property industry. By using an analogy, this review attempts to search for possible solutions for the current Taiwan legal system for resolving the patent-validity dispute by comparing against legislative and judicial experiences in the United States. This article provides two solutions for promoting the cost-efficiency in Taiwan patent-validity litigation. One solution is to recognize the defensive issue preclusion, but not the offensive issue preclusion, unless the plaintiff, who was not a part of the previous case and now uses the issue preclusion offensively, could not have easily been involved in the previous case, and the assertion of offensive issue preclusion would not be unfair to the defendant in the case. The other solution is the requirement of clear and convincing evidence to overthrow the presumptive patent validity in the litigation. To adequately permit the third-party effects and enhance the burden of persuasion (proof) for challenging the issued patent in civil litigation, Taiwan could progress to achieve the patent-economy goal.

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