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The Application Of "Notice-take Down" Rule In Network Patent Infringement

Posted on:2018-05-22Degree:MasterType:Thesis
Country:ChinaCandidate:J WangFull Text:PDF
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The Internet is an indispensable part of modern human life,the development of network has brought not only great convenience to people's lives,but also new challenge to traditional legal system,and the intellectual property system is one of the biggest impact fields.How to protect intellectual property rights and not hinder the development of network technology and network industry is a reasonable question.For solving this question,American congress passed “Millennium Digital Rights Act”(DMCA)in 1998,establishing “Safe harbor” rules around “Notice-and-takedown” rule.China drew lessons from this rule to make a detailed provisions in “Regulations on the protection of network information dissemination”.“Notice-and-takedown” rule was treated as general rules of the network tort in later “Tort liability law”.As one of the protection objects of “tort liability law”,the network dispute should be applied to "Notice-and-takedown" rule.But the patent right has a difference between copyright and trademark infringement,the network service provider can not make a judgment by ordinary people technology and general experience because of technical factors and strong professional knowledge.If the patent infringement completely copy the relevant provisions of copyright,simply give the network service provider to determine the patent infringement obligations,which will be inappropriate to increase the network operators responsibility.How to depend on the patent right itself characteristic,combining with the system of regulations and the practice of our country,absorbing and drawing lessons from the beneficial experience in foreign related system,developing the patent infringement liability system suitable for the characteristics of network patent infringement and the development of network technology and network industry,is the focus in revising patent law and the core of this thesis.In this thesis,the feasibility of the application of "Notice-and-takedown" rules in the case of patent infringement is discussed under its definition,Although this rule originated in the field of copyright and patent infringement and copyright infringement does have some differences,however,after the loss in the appropriate system,there is still room for network patent infringement investigation,and to carry out theoretical research and practice.There are four parts in this thesis,part one introduces the generation,development and application of "Notice-and-takedown" rule.Because our country did not fully take into account the differences between China and the United States in the transplantation of the rules,resulting there are two contradictory explanations for the nature of "Notice-and-takedown" rule in our country.At the same time,although this rule is the best way to balance the interests of all parties,the abuse of the implementation process is prominent.In this part,the author discusses the general situation of "Notice-and-takedown" rule,which is a basic way to discuss the feasibility of applying it in the network patent infringement.Part two analyzes the feasibility of "Notice-and-takedown" rule in network patent infringement,discussing the feasibility of applying the rules in the field of patent infringement in three aspects.First of all,the application of "Notice-and-takedown" rules in the patent infringement of Internet is in accordance with the principle of balance of interests.Secondly,the application of "Notice-and-takedown" rule in the patent infringement of the network is in line with the legislative purpose.Finally,the application of "Notice-and-takedown" rule in the patent infringement of Internet is in accordance with the principle of fault.Through feasibility analysis,lay the foundation for the application of the following rules.Part three analyzes the subject,subjective elements and objective elements of "Notice-and-takedown" rule in network patent infringement.On the basis of the analysis of the difference between patent infringement and copyright infringement,this thesis draws on the relevant regulations of copyright,and formulates "Notice-and-takedown" rule for the network patent infringement.Part four puts forward some suggestions for application,we can learn from the existing experience of network platform service providers,and improve the implementation of "Notice-and-takedown" rule.
Keywords/Search Tags:Network patent infringement, "Notice-and-takedown" rule, Indirect infringement
PDF Full Text Request
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