1.
Complaint and Answer
A
patentee may initiate a lawsuit by filing a complaint that includes the
parties’ information, prayer of remedy and grounds why the defendant is liable
to the plaintiff. The plaintiff may seek a court granting an order of barring
the opposing party’s infringing manufacturing, marketing and selling
activities; the seizure or destruction of all finished or half-finished
infringing products in the opposing party’s possession and compensation for
damages.
The
defendant may submit a written answer to deny or accept the complaint within 30
days of being served the complaint. Furthermore, the defendant may file a
counterclaim. But, due to bifurcated system about independent invalidity
action, the defendant may not file a counterclaim to invalidate the subject
patent.
2.
No Discovery like the US type is available.
3.
Briefs and Evidence as Exhibits
After
the court has served the answer to the plaintiff, the parties are required to
exchange briefs and exhibits. Each party may object to those exhibits that are
irrelevant or inappropriate. The plaintiff ordinarily files his briefs at
first, and then the defendant files his briefs in turn. A court may allow the
parties having another opportunity to exchange briefs before a preparatory oral
hearing which is a kind of scheduling meeting. The court usually permits a 3~4
weeks period for each brief filing. The court usually rules on the
admissibility of the objected exhibits in the oral hearing.
4.
Oral Hearing
In
the first oral hearing, the court will allow parties submitting their arguments
and evidence and then will arrange the disputed facts and issues between
parties. Through briefs, parties will provide the court with the nature of the
controversy, evidence, legal contentions that the parties believe support their
positions. The court will decide what issues are presented by both parties and
how the case will proceed. It is likely for parties to have two or more oral
hearings in patent infringement case.
5.
Evidence
Korea
does not have discovery procedures and jury trials. All lawsuits are tried by
judges. Because judges are skilled in the rules of evidence, judges are usually
lenient in allowing evidence to be introduced.
A.
Document Request
Each
party can request the court to order the other party to submit relevant
documents in issues. The party having the document must submit the document to
the court. The court can enforce this order by monetary sanctions and
evidentiary sanctions. Evidentiary sanctions include not allowing responding
party’s submission of the evidence for his benefits, and more importantly may
regard the requesting party’s assertion as true. The document request is not
applicable to attorney client privilege documents, attorney work products and
confidential information.
B.
Protective Order
In
case a party insists the document is private, trade secret, or others, the
court may order the party to submit the document and then examine without the
other party’s participation. Hence it is not permitted for a respondent to
refuse document submission for trade secret reasons. Only the party may seek
court’s protective order on his information.
C.
Expert Opinion
The
parties can retain experts to testify on their behalf. The party applying for
expert opinion should submit expert candidates and manner of expert opinion,
and further should pre-pay the cost. If the party applying for expert opinion
wins the case, the prevailing party will recover the cost from the losing
party. Patent cases need prudent expert opinions that usually need considerable
time and cost.
D.
Court Inspection
Court
inspection is adopted for judges to examine and analyze actual objects using
the five senses of judges. The court inspection can be the most powerful means
for proof if judges recognize the nature and contents of the subject evidence
adequately. For example, judges may compare patent’s product with infringer’s
product through watching experimentations or seeing or touching by themselves.
Though ordinarily it is not easy for judges to comprehend the technical
peculiarity through court inspection, the court often allows parties court
inspection.
E.
Special Hearing for Technical Issues (Markman
Hearing)
A
court usually set an oral hearing for examining technical features. Both
parties may present technical issues including background technology, claimed
inventions, elements of the invention and comparison of elements between the
patented invention and the accused product or process. Parties are permitted to
use drawings, documents, power point presentations, models, real products,
demonstrations, and others. It is one of the most important proceedings for
parties to be able to have an influence on judge’s decision.
F.
Witness Examination
The
party who calls a witness will conduct the first examination of the witness.
The direct examination shall be done by using open-ended questions. For
instance, any leading questions, which allow only for a “yes” or “no” answer,
are not allowed. The opposing attorney has a chance to cross examine the
witness and he is allowed to use leading questions: cross examination. But the
cross examination shall be limited to the subject matter raised during the direct
examination. When the opposing attorney has finished his cross examination, the
attorney who did direct examination has an opportunity to conduct redirect
examination. The attorney again cannot use leading questions.
Parties
may submit an affidavit as documentary evidence for direct examination of a
witness. In the oral hearing, only crucial points of the affidavit are examined
and other details can be omitted in that direct examination. Accordingly,
sufficient time is allotted for cross-examination. When a witness is hostile
and is not under the influence of the requesting party, the party may file a
motion that the witness must be summoned and when the motion is accepted the
party must submit main contents for direct examination in advance.
