論智慧財產訴訟之鑑定與專家證人

Abstract

我國關於專家鑑定問題之研究，向來偏重於傳統刑事案件、精神鑑定、性犯罪、鑑識會計、醫療糾紛、交通事件、工程爭議等主題，然而對實務上相當重要的智慧財產鑑定，卻意外地罕有討論。本文以智財鑑定為主題，類型橫跨專利、著作權、商標、營業秘密等四大智財領域。首先以國內智財鑑定的判決實證研究為取徑，呈現案件類型比例、鑑定證據之適格條件、採信與否之證明結果、鑑定機關之分布等角度，描繪我國智財訴訟中鑑定制度的實況。此外本文也進一步跨國對照，介紹美國的專家證人制度，並以最高法院或其他聯邦法院的智財案件為例，解析智財專家證人的運作情形；最後以此為基礎，探討《商業事件審理法》草案版專家證人可能之問題並提出建議。

Most of the studies on expert witness conducted by domestic senior legal scholars have always focused on traditional criminal cases, forensic psychiatry, sex crimes, forensic accounting, medical disputes, traffic incidents, construction disputes, etc. However, despite its importance in practice, the use of expert witnesses in intellectual property cases has surprisingly rarely been discussed. This article focuses on the use of IP expert witness across four primary types of IP rights: patents, copyrights, trademarks and trade secrets. First, domestic IP cases were collected to process a legal empirical study with descriptive statistics of the type of cases, the eligibility and admissibility of the testimony, the organizations, so as to come up with a solid understanding of how the IP expert witness has been using in our court practices. Furthermore, in order to view this issue in a comparative perspective, the article also introduces the expert witness in the United States legal system, and analyzes several IP cases from U.S Supreme Court or other federal courts to describe how the IP expert witnesses work in practices. In sum, the article comments on the expert witness system from the draft of the Commercial Case Adjudication Act.