Videoconference for Oral Hearing

The First Remote Videoconference Hearing between Seoul Central District Court and Jeju District Court Ÿ   The new Civil Procedure Act allows implementation of videoconference (VC) hearing of trials from September 30, 2016, enabling witnesses and assessors to provide testimony without making appearance to the courtroom. Ÿ   The VC hearing can be efficient for witnesses or assessors who have difficulties in making appearance to the courtroom due to long geographical distance or transportation complexities, or who are under difficult situation to face the litigation party in person.  However, parties to the trial (plaintiff and defendant) must still be present at the courtroom. Ÿ   Witnesses who wish to provide testimony via the VC may go to the VC Hearing Room in the nearest court from his/her place of residence.  Assessors are allowed to use videoconference equipment with internet connection at the place of his/her office or residence, as well as using the VC Hearing Room of a court. Ÿ   The information communication network between the trial courtroom and VC Hearing Room of another court or between the courtroom and assessors’ offices allows the trial panel to look at the faces of witness and assessor, and the witness and assessor to watch the trial panel and parties on the VC screen during the proceeding. Ÿ   Following the revision of the Act, first VC hearing took place on November 16, 2016 between Seoul Central District Court - where the trial was conducted - and Jeju District Court’s VC Hearing Room. Ÿ   The VC hearing is an exemplary case of effective using the information communication technology (ICT) to overcome the geographical inconvenience of witness living in Jeju Island to appear in the courtroom in Seoul. Ÿ   The high-performance VC hearing system enabled: (1) a realistic presence of the witness through instant two-way communication, creating an ambience as if the hearing took place in the same courtroom; (2) the trial panel to check the facial expressions on the witness with high-definition video transmission; and (3) to check the authenticity of documents shared through the record viewer on e-Court system. Ÿ   The Korean courts plans to promote the use of videoconference hearing to reduce socioeconomic cost for witnesses living in remote locations to appear in courtrooms and to facilitate obtaining oral statements from professionals such as medical doctors and architects who are too busy to appear in courtrooms and preferred providing written statements.

 

n  Purposes

As there have been many witnesses who can hardly appear at courtrooms for witness examination due to health and occupational issues, trial courts were faced with difficulties in summoning witnesses for examinations, causing delays in setting hearing dates for many witness examinations.  There also were no legal backgrounds to individually examine civil case witnesses in separation from the litigation parties unlike criminal case defendants.  Thus, the Civil Procedure Act was revised and came into effect on September 30, 2016 to provide legal grounds and procedures to hold remote videoconference hearings for witnesses and assessors.

n  Expected Outcome

The remote videoconference hearing system is expected to effectively produce the following outcomes:

1.      Contribute to having comprehensive fact-finding proceedings through effective and thorough evidence examinations by preventing delays or postponements in setting trial dates;

2.      Provide appropriate support measures for witnesses who face difficulties to appear in courtrooms or need to be examined in separation from the parties, and reduce socioeconomic cost on witness’s long distance trip to the courthouse; and

3.      Reflect the opinions from dominant experts residing in foreign countries, based on effective judicial cooperation between the Korean and foreign judiciaries.


 

The Patent Court published a Decision in English on August 17, 2017

 

The Korean Patent Court started a new procedure for oral arguments in English. Parties may argue in English without translators.

Furthermore, the Patent Court published a Decision in English. The original decision is in Korean but the English version was officially prepared by the Patent Court. This is the first one and the Patent Court will publish their decisions in English regularly for noteworthy cases.

Link: The Patent Court 2016Heo7695 Decision in English

The Patent Court Hears Oral Arguments of Infringement cases and Patent Validity cases at the same time

In patent and utility model cases, a panel of three judges reviews the records and a technical advisor provides a detailed presentation on technical matters to the panel. Absent special circumstances, a case proceeds to an intensive trial without a pre-trial hearing. Patent and utility model cases that involve specialized technical matters and complicated issues that are difficult to understand, may proceed to a pre-trial hearing. A trial date is generally set for design and trademark cases without a pre-trial hearing because the subject matter and issues in many design and trademark cases are relatively simple compared to those of patent and utility model cases. A presiding judge conducts the trial, and requests the parties to provide detailed presentation on technical matters, using various multi-media devices, real products, and models. A presiding judge also examines evidence such as documents and witnesses. Through these procedures, technical matters are reviewed in depth. In principle, technical advisors may participate in the trial.

Practice on Final Appeal to the Supreme Court in Korea

The losing party in an appeal proceeding of the second instance may again appeal the decision of the appeal court to the Supreme Court. The notice of appeal to the Supreme Court must be filed with the appeal court within 14 days from the receipt date of the high court decision. That is the deadline which is not extendible. The court of appeal will send the dockets of the case to the Supreme Court.

The Supreme Court dockets the case and order the petitioner to submit a final appeal brief within 20 days from the receiving date of the court order. The period cannot be extended and the case will be dismissed if the final brief has not been filed within the period.

The respondent (opposing party) will be served the final brief the Supreme Court, and then can submit a rebuttal brief within 10 days of the date of the service. By having submit each brief by both parties, official procedures of briefing have been finished.

However, it is common for parties to submit supplemental briefs after that stage. In principle, the Supreme Court is not required to consider them. In practice, the Supreme Court may take into their consideration some arguments from supplemental briefs in case the arguments are within the appeal brief and the rebuttal brief. If the arguments from supplemental briefs are new, out of the scope of the appeal brief or the answer brief, the Supreme Court will not review them and may not consider as relevant and legal arguments.

After briefings, the Supreme Court will review the final brief of the petitioner and the rebuttal brief of the respondent, and will decide whether the case will be fully reviewed by a panel of 4 justices. 

The scope of appeal to the Supreme Court in Korea is limited to legal issues. Parties may not appeal facts and may not submit any evidences to the Supreme Court. Accordingly the Supreme Court reviews only a matter of law and in case the appeal is based on factual errors of the low courts, the case will be dismissed within 4 months.

Even though the appeal is directed to legal errors of the low courts, due to the excessive number of appeals to the Supreme Court, the Supreme Court can dismiss the appeals if the decision follows the statutes and precedents. It is such a gate keeping quick review process called a refusal of further consideration in the Supreme Court. 

After that stage, a panel of 4 Justices will fully review the appeal case. Or all members of 14 Justices in the Supreme Court may decide the issue through en banc reconsidering the case. Such a full review will takes about 1 and half years or 2 years.

The Supreme Court has given deference to the decisions of the High Courts, and therefore we can see only about 5% of winning rate among final appeal cases to the Supreme Court. The Korean patent court plays the final decision maker as a matter of practice like the CAFC in the U.S.

Two recent Supreme Court decisions on Product-By-Process claim in Korea

The Korean Supreme Court rendered two decisions regarding Product-By-Process claims this year.

In the first Supreme Court decision that was rendered on January 22, 2015 (Supreme Court case No. 2011 Hu 927, en banc), the Supreme Court held that the patentability of product by process claims must be based on the product itself without considering the process recited in the claim. By the en banc decision, the standard of patentability of product by process claim was changed from the old practice that allowed some exceptions. The new standard does not allow any exception to product by process claims. Therefore, new process limitations can NOT save patents claiming known or obvious products.

Furthermore, in the second decision that the Supreme Court rendered on February 12, 2015, (Supreme Court case No. 2013 Hu 1726), the Court held that the same principles set forth in the first Supreme Court case No. 2011 Hu 927 shall be applied for constructing product by process claims; determining the claim scope of product-by-process claims and judging infringement of product-by-process claims. The process in claims shall not be any limitation and thus the product made by any different process may infringe the product by process claim.

However, the Supreme Court allowed an exception: in case the scope of claimed invention is clearly, overly broad and unreasonable (e.g., unduly exceeds the scope supported by the specification disclosure as a whole), the claim wordings of the process may be used as limitations to the scope of the product by process claim.

In summary, (1) the product itself in claims shall be a basis for the scope of claimed invention without considering the process limitations; but (2) the claim wordings of process may limiting the scope of claims in case the constructed scope of product by process claims is clearly and unreasonably broad considering the specification.

The old law is that always, without exception, every wording of clams shall be regarded as limitations of claimed inventions and thus the process recited in product by process claim must be considered to determine the scope of claims for infringement judgment. Under the old law, the same product made by any different process does not infringe the product by process claim. The recent Supreme Court decision changing the old law will benefit patent owners.