PHILIPPINES Law and Practice Contributed by: Mark Leo Bejemino, Maria Patricia Cruz and Edward King Chua, Villaraza & Angangco
1.9 Declaratory Relief Philippine courts have discretion to grant declaratory relief. Under the rules, any person with an interest under a deed, will, contract or other written instru ‑ ment – or whose rights are affected by a statute, executive order or regulation, ordinance or any other governmental regulation – may bring an action before the court, before any breach or violation occurs, to determine any question of construction or validity and to obtain a declaration of his or her rights or duties. Nonetheless, the court’s action is discretionary, and it may refuse to act on the petition. At present, existing rules and jurisprudence have not addressed the availability of declarations of non- infringement or “Arrow declarations”. 1.10 Doctrine of Equivalents The Doctrine of Equivalents is recognised in the Philip ‑ pines, allowing a patent-holder to assert infringement even when the allegedly infringing product or process does not literally fall within the patent claims but is equivalent to the claimed invention. In the Philippines, the Doctrine of Equivalents is assessed using three complementary tests. • The insubstantial test – patent infringement occurs when the infringer appropriates the patented invention but makes only insubstantial changes. A change is considered insubstantial if a person skilled in the art would recognise it as merely a substitute for the replaced element. • The triple identity test (also known as the function- means-and-results test) – infringement exists if the allegedly infringing device or process performs substantially the same function, achieves substan ‑ tially the same result, and uses substantially the same means as the claimed invention. • The all-elements test – each individual element of the patent claim is compared to the allegedly infringing product or process, rather than consider ‑ ing the invention as a whole. The Doctrine of Ensnarement, the Formstein Defence and the concept of “disclosed but not claimed” have not yet been applied or adopted in the Philippines due to the relatively sparse patent jurisprudence. While
circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used. • If only part of a deposition is offered in evidence by a party, the adverse party may require him or her to introduce all of it that is relevant to the part introduced, and any party may introduce any other parts. There are currently no rules providing for the admis ‑ sibility of depositions taken in other jurisdictions. In general, the rule is that the deponent must be pre ‑ sented during the hearing to testify on his or her deposition, as a deposition is not a substitute for live testimony. Furthermore, materials such as affidavits or other evidence obtained from foreign jurisdictions must be apostilled or authenticated before they can Search and seizure orders are available in both admin ‑ istrative and criminal proceedings to enforce intellec ‑ tual property rights. An application for a search war ‑ rant may be filed even before the commencement of an action. However, if there is already a pending case, the application must be filed with the court where the case is pending. A search warrant shall be issued only upon a show ‑ ing of probable cause that a specific offence or viola ‑ tion has occurred. The application must describe with particularity the place to be searched and the items to be seized. The judge must personally examine the complainant and any witnesses under oath or affirma ‑ tion, through either oral examination or written ques ‑ tions and answers based on facts personally known to them. The judge must review and attach the affidavits and sworn statements to the record. If the judge is satisfied that probable cause exists, the warrant may be issued. be admitted in Philippine courts. 1.8 Search and Seizure Orders The current rules do not provide for the applicability of search and seizure conducted in other jurisdictions.
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