In Taiwan, a patent holder may, based upon relevant stipulations in the Code of Civil Procedure, file a pre-trial motion with the judge to obtain an “evidence preservation order” (EPO) against a holder of evidence.
As mentioned in the article How to Get an Evidence Preservation Order published in the September, 2009 issue by the same author, during the period from July 1, 2008 (the date when the IP Court formally started its operation) to February 28, 2009, the IP Court rendered a total of 42 EPO decisions, granting only 7 orders. This indicated a success rate of under 20% for movants wishing to preserve evidence through court.
With July this year seeing the 5th anniversary of the IP Court, let us take another look at the chances of success in preserving evidence through the IP Court over the past years.
The outcome may give those wishing to preserve evidence by way of obtaining an EPO cause for concern, as according to the statistical findings of a recent academic research on evidence preservation for IP infringement lawsuits, only 20 of the 158 motions for EPOs were approved by the IP Court as of December, 2012 since its inception in 2008, suggesting an even lower success rate of under 15%. Obviously, the lofty threshold for evidence preservation raised by the IP Court has not been lowered since 2009, as compared with the success rate of 40% for similar motions heard by ordinary courts prior to the establishment of the IP Court.
Some IP Court judges expressed, when interviewed by the research team, that the lower grant rate can be attributed to their intent to avoid the mechanism from being abused by patent holders against evidence holders’ trade secret rights. Moreover, since the seizure of evidence requires IP Court judges to travel in person to the scene, and since the IP Court is bestowed with nation-wide jurisdiction, the long traveling distances, coupled with unpredictable on-scene incidents, may serve as another factor to explain the one-sided acceptance/rejection ratio.
The judges also emphasized during interviews that EPO grant rates are in no way affected by the nationality of the movant, and that both foreigners and locals share the same chances of success in obtaining EPOs. Conclusively, the academic research indicated that if the IP Court could take steps to strengthen the function of the discovery process in patent infringement lawsuits during trial, motions for EPOs would no longer play such a pivotal role in patent infringement lawsuits.