On The Application Of Expert Assistant System In China’s Patent Litigation

According to the White Paper on the Status of Judicial Protection of Intellectual Property in Chinese Courts(2018),among the first-instance civil IP cases newly received in 2018 by local people’s courts at all levels,21,699 patent cases were newly received,a year-on-year increase of 35.53%.This growth trend is reflected not only in the number but also in the complexity of patent litigation cases.With the development of science and technology,the technical facts of patent litigation have become more and more complicated.In order to find out the facts of a case in a patent trial,“persons with specialized knowledge”,that is,expert assistants,are required to participate in the litigation to help the judge to identify the technical facts in the case.However,in China’s current technology identification mechanism,the application rate of the expert assistance system in judicial practice is low,and the original intention and purpose of designing the system cannot be realized.This article is based on the data of China Judgment Documents Network and combined with typical cases in judicial practice.Through objective analysis of the above data and cases,the actual dilemma of applying the expert assistant system in the current patent litigation is as clear as possible.The real dilemma we face is to start with the provisions of the Anglo-American legal system of expert witnesses,and we intend to find a way to break through this dilemma in the context of the judicial practice of Chinese patent litigation.The structure of this article is as follows:The first part outlines the concept of expert assistants and the value of expert assistants to patent litigation.Specifically,expert assistants are professionals who are hired by the parties to make statements,explanations,and interpretations on professional and technical issues,and to issue cross-examination opinions on relevant appraisal opinions or other issues involving professional issues.Patent litigation cases,on the other hand,are conducive to ensuring and facilitating the parties’ exercise of litigation rights in accordance with the law.The second part summarizes the current application situation and practical dilemma of the expert assistant system in patent litigation by comparing with the appraisers,that is,the technical investigator’s application in patent litigation,and the analysis of typical cases of the application of expert assistant system.In particular,the application rate of expert assistants in patent litigation is low,the selection of expert assistants is confusing,and the opinions of expert assistants are lacking in evidence and the rules of acceptance are unknown.The third part is aimed at the practical dilemma of applying the expert assistant system in patent litigation.It examines the Anglo-American legal expert witness system used in the establishment of the expert assistant system in China,and analyzes the specific requirements of the expert witness system in the above-mentioned practical dilemma.And measures,specifically,the facilitator’s assistant system in the British and American law system will be pre-trial disclosure in the procedure,the rights and obligations of the expert’s assistant are more situational,and there are clearer rules for adopting expert opinions.The fourth part proposes ways to break through the above-mentioned dilemma,which specifically includes legislatively specifying the litigation status and qualifications of expert assistants,pre-trial disclosure of their opinions on the procedure,and publicly assisting experts in the referee document center,so as to adopt the opinions of people to improve the application of the expert assistant system in the field of patent litigation in our country,and to increase the application rate of the expert assistant system.