Research On "Notice And Take Down" Rule In Patent Law

The revised draft of patent law of People's Republic of China has brought in “ Notice and Takedown ”Rule embodied in article 63,which is trying to clarify the legal stand of Internet Service Provider and burden them with higher duty of care in proportion to their character, expecting them to find and stop the infringement themselves in time, therefore protecting the legal rights for the right holder. However, the Rule under patent law may put more emphasis on the protection of the right holder, failing to reflect what kind of characteristics patent infringements or its identification may have due to the uncertainty of core elements and lack of systems related, which leads to the conflicts concerning to the application, abuse of the rule as well as heavies the duty and liabilities for ISP. It seems that the intention for the rule might be apart from its actual consequences. As a result, further revision concerning the concept is needed, combing with the material traits to perfect it with industrial wisdom.Apart from the introduction, there are other 4 parts, amounting to 40000 words. The first part analyze the necessity feasibility of the import of the rule into patent law, Analysis and interpretation about the concept and content are also included.The second part holds the view that legal rules might influence cost benefit and behavior choice from the perspective of game theory. The rule confirms the balance parties have achieved while it starts game the same time. Related parties will make full use of information, adjust their strategies to maximum profits. This Article is trying to analyze their cost benefit and behavior choice.The third part takes internet transaction service provider as an example, discussing the abuse of the rule due to imbalance of the concept and the accurate details needed for application, burdening the duty and liabilities for ISP, leading to the close of the platform and atrophy of internet economy.The last part offer perfection advices for the rule from both concept and destination of accurate system articles, taking account of the practice, fully absorbing industrial wisdom.