The Application Of “Notice-delete” Rule In Internet Trading Platform For Patent Infringement

With continuous development of society, new requirements for the existing legal regime and reconstruction of the traditional intellectual property system will be put forward due to the emergence and application of new Internet technologies. It is the case that the application of "notice- delete" rule in the field of patents. The expansion of e-commerce has posed new challenges to intellectual property system. The frequent litigation of patent infringement in Internet trading platform not only affects the health development of network trading platform itself, but brings more challenges to intellectual property system.To cope with this challenge, the "notice- delete" rule which is originally only for network copyright infringement, is applied in the field of network patent infringement as a fast dispute resolution mechanism and ISP liability waiver mechanism. So far though, still not regulated by the current "Patent Law", the "notice- delete" rule is intended to apply to patent infringement by judicial practice and legislative bodies. Thus, during the period of amendment of the "Patent Law", there is important theoretical and practical significance to explore the applicable conditions, applicable difficulties and system designs of "notice- delete" rule in the area of patent infringement.This article introduces the emerging background, specific content and legal liability should be undertaken by operators of online trading platform based on the application of the "notice- delete" rule, points out the application difficulties of the "notice- delete " rule for operators of online trading platform, highlights the application difficulties due to the characteristics of the patent system and analyzes the application difficulties of the "notice- delete " rule based on the imperfection of the rule itself. On the premise of research on the corresponding supporting system and application difficulties, the deficiency of current national "notice – delete" rule is analyzed and specific application forms of "notice- delete" rule in the field of patent are put forward for online trading platform, namely to establish and improve the supporting system of "notice- delete" rule. This paper consists of four parts:The first part is a simple overview of the "notice- delete" rule, supposing that "notice- delete" rule is designed for balance of the interests between ISP and right holders and the main purpose is to quickly resolve disputes and reduce the loss of right holders. The formation process of the rule is the continuous contest between ISP and IP right holders. The content and specific meaning of "notice to delete" rule is explored and the rule to different countries is clarified.The second part focuses on legal liability of operators of online trading platform under the existing legal framework, analysis of the types of online trading platform which can be divided into proprietary online trading platform and third-party network trading platform according to the degree of participation in the transaction, and on the basis of different characters and legal statuses of the two to set forth the legal liability should be undertaken in the current legal system respectively, with focusing on the legal status and legal liability of the third-party network trading platform.The third part analyzes the dilemma that the current "notice to delete" rule in application. In the field of patent infringement of online trading platform, there are practical difficulties of judgment and identification of patent infringement by operators of online trading platform themselves. The regulation of duty of care for network operator is unclear, appropriate specific provisions are insufficient and there are also a series of problems of unclear legal provisions in specific application of the "notice- delete" rule.The fourth part presents the suggestions for operators of online trading platform in application of "notice- delete" rule, namely to establish appropriate supporting system of "notice- delete" rule in our country, including to clarify the applicable conditions, establishment of debate mechanism, system of accountability of error notification for right holders, deposit system, the credit rating mechanism, specialized institutions of intellectual property rights and the introduction of insurance companies. Hope this article could provide some reference for amendment of Patent Law in our country.