The Analysis Of Application Of The "Notice And Take Down" Procedure To Patent Infringement Cases

Nowadays,the drastic expansion of the scale of online transactions has caused serious problems of patent infringement.Therefore,domestic legislative departments try to incorporate the “notice and take down”procedure that originated in the field of copyright into patent law,Article63,paragraph 2,the Draft of the fourth Amendment(Draft for Review)of Patent Law promulgated in 2015 provides for the relevant content,which has drawn the attention and controversy of the theory and practice circles.This article takes the origin of legislation,legislative basis,judicial practice,extraterritorial experience,legal interpretation and legislative advice as the path of thinking,summarizing the main points of the current academic community,combined with a variety of research methods,and trying to answer the following two questions: Whether the “notice and take down” procedure can apply to patent infringement directly? How to reform the relevant regulations in the Draft Amendment of Patent Law?The main content of this article is as follows:The first chapter introduces the background of the “notice and take down” procedure,the legislative practice in our country and its legislative basis.The “notice and take down” procedure Originates from the Digital Millennium Copyright Act,by sorting out the background of this rule,the author believes that the establishment of this rule in the United States is actually a product of the "strict responsibilities" and "fault liability" contradictory views,reflecting typical pragmatic thinking.The second chapter mainly summarizes the ideas and main problemsof the trial of “notice and take down” procedure in the judicial practice of patent infringement disputes in our country,at the same time examines the legislative and judicial practices of some countries outside the territory.The third chapter mainly introduces the restriction of the application of the “notice and take down” procedure in the three levels of network service type,civil rights type and specific applicable conditions.In this chapter,we will put forward a basic premise that the civil rights should apply to the “notice and take down” procedure.The fourth chapter mainly puts forward the author's reform plan of the relevant provisions of the Draft Amendment of Patent Law?the scope of cognizance of obligations of network service providers in patent infringement and the establishment of other supporting systems.