Research On The Patent Tort Liability Of Online Trading Platform Operators

As the rapid development of e-commerce,the online trading platforms are playing a main role in the commodity transactions.However,these platforms also become places where intellectual property infringements frequently occur.Although China have enacted the Tort Liability Law which regulates the tort liability of internet service provider when users infringing the patent right of others,since it lacks the related judicial interpretation as well as detailed provisions in the patent right protection area,the tort liability of online trading platform operators is still unclear.Moreover,as the e-commerce's business model changing,the online trading platform no longer operates as a neutral third party in the specific transaction,to just provide online services such as information storage,search services and online payment,but begin to play an active role in the transaction and strengthen the control of the users by business promotion,drawing up market rules,and other similar behaviors.Whether these new commercial activities will affect the neutral nature of the operators of online trading platform and makes them cannot shelter in the "safe harbor" become a controversy question.This paper first compare online trading platform and its related concepts,then carefully exam the new commercial activities such as business promotion and developing market rules,looking through infringements and their characteristics on online trading platforms,this paper then give analysis and interpretation of the defects of China's legislative on determining the patent right tort liability of the online trading platform operators.By differentiating the features of online trading platforms,analyzing the premise of "safe harbor principle" when using in the field of patent infringement,Comparing the difference between the patent right and copyright and so on,this paper concludes that:restrictions must be imposed when transplanting the"safe harbor principle" from copyright to patent right,platforms can't enter the safe harbor to get the exemption from liability and have a higher standard of duty of care as the new commercial activities arise.Finally,this paper tries to analysis the patent infrigement responsibility principle,methods,shapes and the constructive factors of tortious liability online trading platform operators may take responsibility when its users take advantage of the platform to infringe a patent by using the theory of safety ensuring obligation and indirect infringement in the traditional tort law.Then make suggestions for the improvement of relevant laws.