Study On The Burden Of Proof Of The Third-party E-commerce Platform In Patent Infringement Litigation

With the rapid development of e-commerce,patent infringement has shown some particularity.The current "tort liability law" Article 36 too principled to operational in the judicial practice,resulting in the same case having a different verdict,and the judicial practice is not uniform.The fourth revision of the Patent Law,and the Electronic Commerce Law,have not yet been formally approved and can not be used as a basis for the trial.According to the system of burden of proof in China,the determination of tort liability in the substantive law play a decisive role in the distribution of the burden of proof in the litigation law,that is,it decides what kind of burden of proof the third party platform and patentee should bear in the patent infringement litigation.Moreover,the burden of proof system plays an important role in the process of civil litigation,which is the "spine" of civil litigation,and affects the process of litigation and the result of litigation.Therefore,in order to better protect the patentee's litigation rights,and protect the patentee's right to be infringed can be relief through the judicial channels,clearing the specific distribution of the burden of proof in this action is imperative,and that is the significance of this paper.This paper consists of four parts:The first partis mainly study on the general theory of the burden of proof of patent infringement litigation in the third party platform of e-commerce.Including the meaning of the burden of proof,the three main doctrines of burden of proof,and the rules of burden of proof: general rules,special rules and supplementary rules.The second part is the analysis of the present situation of the liability of patent infringement litigation in China's e-commerce third party platform,mainly from the legislative and judicial practice of two aspects.First of all,this chapter detailed analysis the "Tort Liability Act" Article 36 and the "Civil Procedure Law" and extreme judicial interpretation of the burden of proof of the provisions from the legislative,and summary analysis the past two years of e-commerce third-party platform patent infringement litigation judicial from the judicial practice,especially the part of the decision.The third part mainly analyzes the existing problem and the reasons of the application of the burden of proof in the patent infringement litigation of the third party platform of e-commerce in China.Under the premise of the understanding of the current situation of legislation and judicature,this part analyzes the existing problem of the burden of proof of patent infringement litigation in e-commerce third party platform are as follows: the uncertain legal status of e-commerce third party platform does affect the distribution of burden of proof,the judicial practice of burden of "know" rule and " notice-delete " rules is not uniform,and the general rules of the application of the burden of proof in the procedural law will lead to the emergence of unfairness.The reason of the above problems is :the particularity of the third party platform of e-commerce,the particularity of the patent right leads to the difficulties of the application of Article 36 of the Tort Law,and the imperfection of the relevant laws.The fourth part is mainly to make some suggestions for the burden of proof of the e-commerce third-party platform patent infringement litigation.On the basis of deeply analyzing the importance of rationally allocating the burden of proof,this part puts forward some suggestions from the three aspects of:clarify the legal status of the platform to determine the application of the burden of proof,improve the rules of "know" rule and " notice-delete " rules to clarify the burden of proof,and supplement the relevant legal requirements for the general rules.