One special feature of intellectual property litigation under the newly promulgated Procedural Act of Intellectual Property Litigation (The “Act”) is the introduction of ORDERS TO KEEP SECRECY (refer to the article “A Special IP Court is Going to Run” in Issue 85 of this magazine). The purpose of the orders is to release the parties from the hardship that may be caused by the stricter evidence rules under the Act.   

As part of the preparation necessary for the operation of the new IP Court, the Judicial Yuan drafted “Rules for Handling Orders to Keep Secrecy by the Courts” (the “draft Rules”) on May 28, 2007. The draft Rules basically dictate the procedure to be followed by the court staff in implementing the order to keep secrecy that is decreed under the Act and are applicable to the files and documents covered by such an order.   

Under the draft Rules, any documents that are regarded as trade secret shall be sealed by the provider in the presence of the receiving clerk, who shall then transfer the sealed envelope intact to the concerned offices. Throughout the entire litigation or evidence perpetuation procedure, the files for a specific case involving trade secrets shall be kept in a specially prepared envelope and put under the care of the officials in charge.   

The Chief of the office concerned shall assign the files and material subject to a secrecy order to a specific person who is held responsible for the safe keeping of the material and shall make safe boxes with confidential locks available to that person. Any and all sound recordings or computer records made in the court rooms for a matter involving a secrecy order shall be deleted at the end of the hearings after copies have been made and stored in the file bags, duly signed and dated by the court clerk.    

If any official in the same court or other courts has a need to inspect or use the documents covered by a secrecy order, she/he will be required to fill in a request form, or to file an application in writing, for the approval of the judge in charge of the case. Transfer or return of the files is conducted personally by the court clerk or by using secrecy boxes. On the other hand, when an application to inspect the documented information covered by an order has been filed by a person who is subject to a secrecy order, the court clerk shall submit the application to the judge for a determination of the scope of inspection or of a transcript to be made.    

In returning the files containing trade secrets that are subject to a secrecy order, the official in charge shall mark the returning dates and sign at the sealed opening of the special envelope holding the files. The archive staff is only allowed to examine the files based on the remarks on the envelope without opening it.   

The draft Rules also deal with some other details regarding implementation of the court orders to keep secrecy, all targeted to safeguarding the parties’ interest in their trade secrets while fulfilling the legal aim of achieving an effective finding of facts.