TIPS^®  Taiwan Intellectual Property Special

Paragraphs 2 to 4 of Article 131 of the Patent Law provides that:

“When filing a lawsuit against the defendant specified in Articles 123 to 126, the patentee shall submit along with his complaint the infringement verification report and the written notice given by the patentee to the infringer requesting for ceasing such infringement.In the absence of the documents as set forth in the preceding Paragraph, the complaint filed shall be deemed unlawful.The Judicial Yuan and the Executive Yuan shall coordinate with each other in appointing professional institutions for infringement verification.”

Given the above provisions, the patentee cannot file legally admitted lawsuit unless he can produce an infringement verification report (similar to legal opinion of patent infringement). Under the Criminal Procedure Law, any examination and/or verification will not be initiated until the start of the investigation proceeding, and the Public Prosecutor and the Court have the right to examine all evidence by their discretion, which will not be bound by the so-called infringement verification report submitted by the patentee. Therefore, the prerequisites of “infringement verification report” for filing a patent infringement lawsuit will then become an undue burden on the patentee. Since such prerequisites in the Patent law unnecessarily confine people’s right of litigation, these provisions are in violation of the Principle of Proportionality under Article 23 of the Constitution Law.