“No additional means of attack or defense shall be presented, except in case of any of the following: 1. Where such additional means of attack or defense were prevented from being presented as a result of the court of first instance acting in contravention of the laws and regulations; 2. Where the occurrences giving rise to such additional means of attack or defense took place after the conclusion of oral argument in the court of first instance; 3. Where additional means of attack or defense are presented for purposes of supplementing those already presented in the first instance; 4. Where the occurrences giving rise to such additional means of attack or defense are generally known or known to the court in the course of performing its functions, or the court should take evidence on its own initiative with regard to such occurrences; 5. Where the party was unable to present such additional means of attack or defense due to reasons not imputable to him/her; 6. Where it would be manifestly unfair to prevent the party from presenting such additional means of attack or defense. The party shall make a preliminary showing of the existence of one or more of the circumstance provided in the proviso of the preceding paragraph. The court of second instance shall reject any additional means of attack or defense presented in violation of the provision of the two preceding paragraphs.” “The competent intellectual property authority shall provide written briefs in response to the new evidence in the preceding paragraph, indicating whether arguments provided by the opposing party concerning such new evidence have merit.” These are expressly provided in Article 447 of the Taiwan Code of Civil Procedure, Article 33 and Paragraph 2 of the Intellectual Property Case Adjudication Rules.

Moreover, the intrinsic evidences used to interpret the patent claim include the written language of the claim, the specification of the invention (or utility model), the diagram, and the prosecution history. The specification of the invention (or utility model) include the technical field, prior art, content of the invention, applying methods, and simple diagrammatic instructions. Through the investigation, No. M302794 utility model patent owned by the appellee is “A card connector with terminal-protecting function” according to utility model patent instruction page 4 paragraph “prior art” line 1 to line 9: “The conventional card connector with terminal-protecting function provides a technique protecting the terminals, and the key technique is that the guiding sections on the both sides of the platen can fit in the guiding rails on the both sides of housing case and there is distal ramp on the slopes, referring to Publication No. M277143 ‘having a terminal protection of the card connector.’ While different cards are inserted, this technique would act on the slopes and press the platen, then the platen is lowered along the guiding section on the both sides, and simultaneously press the terminals without crushing and breaking the cards. By this way, the terminals will be well-protected.”

Dossiers about the patent claims provided by the appellee (page 120 to 144 of the first trial). Consequently, the technical characteristics of the claim of No. M277143 utility model patent is the construction in which the stopping points locate on the guiding sections on both sides and the vertexes connect with each other.( The so-called “vertex” defines that the construction topping with each other locates on the sides of housing case and platens, which means that the “stopping points” and “vertex of the guiding section” of the prior art are located in the sides of the housing case and platens. This technique is the prior art of the disputed patent, and is the intrinsic evidence with which the court can interpret the claims. Moreover, as claim construction is a legal question, the party presentation principle should not be applied. Hence, the court shall consider the No. M302794 patent when construing the claims according to its authority. Furthermore, the appellee has already proposed another prior case, No.2010 Min-Zhuan-Su-25 (please see page 62 to 72 of the first trial dossier), in 2011, which also sufficiently allow the first trial court to take notice of the No. M302794 utility model patent as a prior art of the disputed patent. However, the first trial court did not use the above intrinsic document, the No. M302794 patent, which is obviously inappropriate.

This court has clarified the procedural matters and made both parties declare their statements (see the dossier page 274 to 277). Later on the two parties also prepared their dossier and added their statements. As stipulated above, the appellee has proposed the evidence No.3, the No. M277143 patent, which is supplemental to the arguments already submitted during the first trial, or belongs to evidence a court shall conduct its fact finding according to its authority. It is in accordance with the provisory clause of paragraph 1 and paragraph 3 and 4 of Article 447 of the Taiwan Code of Civil Procedure. In addition, it belongs to evidence this court shall conduct its fact finding according to its authority. Accordingly, the evidence should be admitted.

Interpret claim(s), Intrinsic evidence, Administrative Authority Investigation.