The court’s order for preservation of evidence in Taiwan’s civil lawsuits provides an effective way to secure evidence through court proceedings. This is especially true in patent infringement cases where, before initiating the litigation, the patentee may find it necessary to use such a preservation order to secure the evidence in support of potential assertions concerning patent infringement and damages. Since its inauguration in July 2008, the Taiwan Intellectual Property Court (hereinafter “IP Court”) has been running for evidence preservation of IP cases for almost 10 years to date. Initially, the IP Court was questioned for its very low rate of granting the order for evidence preservation. Seeming to note this situation, the IP Court recently has responded with a significant rise in the granted rate. Such a trend is clearly shown in the table below, that the rate of granted motions for preservation of evidence was less than 30% in the first five years (2008 - 2013), as against a significant increase of granted rate to more than 50% in the present time.
The motion itself and review of the same is ex parte, in principle. In practice, the Judge of the IP Court would normally hold a unilateral hearing to listen to the movant’s reasoning, and might discuss with the movant on how the evidence can be preserved. Once the motion is approved by the Judge, who usually will decide to conduct “on-site investigation” in order to preserve evidence, opinions on when to investigate or what to be inspected will be further exchanged between the court and the movant. It is worth noting that the opposing party would not be advised of this motion or order for evidence preservation until the time when the Judge knocks on its door to conduct the investigation, giving it an element of surprise.
From our observation of some most recent cases, there are changes to the aforesaid regular execution manner of on-site investigation. In the cases under Docket Numbers 106-civil motion-4, 106-civil motion-35 and 106-civil motion-53, instead of choosing to go to the target spot to conduct inspection, the IP Court directly issued an order to the opposing party, demanding submission of relevant materials and documents/record within a time frame, including the accused infringing product, technical documents, sales record, and the like. Further, the IP Court also stated in its order the negative consequences of failure to produce the materials and documents in accordance with Articles 345 and 282-1 of Code of Civil Procedure. Specifically, if the opposing party fails to comply with said order for submission, the IP Court may, in the subsequent proceedings on the merits, find the movant's/plaintiff’s allegations with regard to the fact to be disputed or the details of such documents/record to be true.