Evidence investigation in perpetuation procedure has a different purpose than that in regular litigation procedure. The latter is used to determine case-related facts, while the former is to prevent the evidence from being destroyed or becoming difficult to use, or to allow the right holder to gather evidence information before the suit. The former could help ascertain the status quo of the facts or object, as well as help the parties determine the actual situation of the dispute. In this case, the parties can decide whether to initiate the action or to pursue a successful mediation or settlement. So that it will be achieved the purpose of evidence perpetuation procedure to prevent a suit. The lower court’s holdings in this case was mainly on the grounds that the movant did not present sufficient evidence indicating the disputed equipment was in the scope of the claim 1, 7, 8, 9, 11, 17 and 18 of the disputed patent 1 and in the scope of claim 1 and 4 of the disputed patent 2, under a preliminary showing standard. Moreover, the lower court ruled that the evidence presented do not qualify for a preliminary showing for which the evidence might be destroyed or its use in court might be difficult. So the Court found the motion to perpetuate without merit. However, collecting and organizing evidences fully before filing the suit is not necessary to the degree of being meritorious. The lower court had erred in not explaining whether the evidence presented by the party to assert perpetuation of evidence was sufficient to the degree of filing the suit reasonably. Furthermore, the appellant asserted that the disputed equipment works for dealing with the emission of exhaust of the VOCs. Excluding certain manufacturers who would need this equipment to process unwanted gases, the general public has no need to purchase this equipment. Thus, the product in dispute is not a general consumer product, and could not be purchased in market directly. In addition, the business pattern for this equipment mainly works as the product being manufactured after being ordered from the customer, then sold and assists installation. Therefore, the appellant could not acquire the disputed equipment on market easily. Moreover, the equipment is now managed and used by the opposing parties. Though the opposing parties are not the direct manufacturer, they had spent a sizable amount of money to purchase it. They certainly hope that they can continue to use the equipment. If the litigation proceedings begin, it may concern the opposing party that the court decision could be disadvantageous to them and make them conceal the information or even reform or alter it. The ○○, ○○ company may also use the opportunity of maintenance to alter its design in order to seek exemption for legal action, and not to be determined of infringing the disputed patent by the Court. Therefore, the lower court did not consider the movant’s assertion that “It is necessary to perpetuate the evidence and ascertain the status quo of a matter or object.” Instead, it merely compared the evidence presented by the party with the technology of the disputed patent, then determined that there was no infringement and the party’s assertion is conjecture in subjective. Additionally, the party might use the perpetuation of evidence to evaluate the cost of filing a suit, then decide whether to initiate the suit. Therefore, the lower court had violated the regulation when not considering the facts of the action comprehensively that whether it is necessary to perpetuate the evidence. The motion to set aside court ruling on the grounds that the original ruling is wrong is meritorious.

Perpetuation of Evidence, Prevention of Suit