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GRAND JUSTICES' INTERPRETATION NO. 507: PATENT INFRINGEMENT ASSESSMENT REPORTS
According to the Patent Law, infringers of patent rights are subject to both civil and criminal li-ability. Articles 123 to 126 provide criminal penalties for infringement by manufacturing protected articles or using protected processes, while Articles 127 to 129 penalize infringement by sale, display with intent to sell, and importa-tion with intent to sell the infringing products. Article 131, Paragraphs 2 and 3, require a pat-entee who files a criminal complaint in respect of offences under Articles 123 to 126 to append to the complaint an infringement assessment report (pre-action report) and a cease and desist letter already issued by the patentee to the infringer. Without these documents, the complaint will be invalid. Article 131, Paragraph 4, of the Patent Law calls on the Legislative Yuan and Executive Yuan to jointly designate professional institu-tions to provide patent infringement assessment reports. At present, there are 69 such designated institutions.
In the past, courts and public prosecutors' offices have sometimes taken the view that the above pre-action report is limited to one issued by a designated institution. This has created difficul-ties for patentees in enforcing their rights. To enforce the legislative intent of the Patent Law, and to reasonably protect patent owners' right to seek legal remedy, in a 1999 judgment, the Su-preme Court held that the right to institute legal proceedings is guaranteed by Article 16 of the Constitution, and should be reasonably protected; accordingly, the pre-action report required under Article 131, Paragraph 2, of the Patent Law is not limited to one issued by a government-
designated institution. At a meeting of the criminal division of the Supreme Court on 26 January 2000, a resolution was also passed to confirm that pre-action reports can be issued by experts or organizations having special expertise and experience, and need not be issued by gov-ernment-designated institutions.
Following the Supreme Court's arrival at the above view, on 19 May 2000, the Council of Grand Justices handed down its Interpretation No. 507. The interpretation states that people's right to seek legal remedy, as guaranteed by Ar-ticle 16 of the Constitution, includes the right to seek judicial recourse when his rights or interests are illegally infringed. Exercising the right to institute legal proceedings should be regulated by laws. To prevent frivolous litigation im-pinging on the liberty of others, and to avoid wasteful use of the country's limited judicial re-sources, the laws may impose reasonable re-strictions on the rights to file criminal complaints and conduct private criminal prosecutions. However, such restrictions must be in keeping with the principle of proportionality set forth in Article 23 of the Constitution. The requirement, as set forth in Article 131 Paragraphs 2 to 4 of the Patent Law, that an injured party must submit a pre-action report when filing a criminal com-plaint is an unreasonable restriction on people's rights to institute legal proceedings, and violates the aforementioned principle of proportionality. Accordingly, the requirement to submit a pre-action report, as set forth in Article 131, Paragraphs 2, of the Patent Law, and the provi-sion of Paragraph 3 of the same article that a criminal complaint is invalid without such a re-port, should immediately cease to apply.