The Application Of Safe Harbor Rule In The Indirect Infringement Of Patent On The Internet Trading Platform

The "safe harbor rules" was first established in the "Digital Millennium Copyright Law(DMCA)".Regulation on the Protection of the Right to Communicate Works to the Public over information Networks also refers to this rule and makes explanation from article 14 to 17.Since the infringement of works was easy to judge,the provisions on the regulation were extremely useful in practice.They play a positive role to solve all kinds of disputes over copyright infringement on the Internet trading platform.By the end of 2015,the State Intellectual Property Office has revised the Patent Law(Draft),and added the new provisions related to "safe harbor" rules.This is the first legislation for the patent infringement in the network environment.In general,the Internet trading platform for patent infringement is mainly related to the patent product offering for sale or sales,rather than providing information.Because the patent products contain technical characteristics,Internet trading platform cannot recognize them as soon as possible.If the patent law adopts this “notice and takedown” rule,it will cause some problems such as the unfair treatment.The Draft does not have any rules to relieve this situation,which will make the rules of the "safe harbor" meaningless.Consequently,it needs to be amended.The infringements on patents are very common and the relevant legislations about Indirect Patent Infringement on the network trading platform were hysteretic.The court always use the "Tort liability” to make decisions.The judgment of patent infringement is complex and professional and requires high technical knowledge.The article 63 is not as easily used as we consider.The draft's purpose to learn copyright law is to make reasonable regulations on patent infringement of the online trading platform,but it ignores the differences between copyright and patent,for example,the object of indirect infringement and the judgment thereof is more complicate than copyright.In addition,the draft contains only "notice-delete" clause,and does not contain the "notice and notice","notice and recovery" and other supporting terms.This is not reasonable.If the Draft keeps to maintain the provisions of Article 63 of the "safe harbor rules",it is necessary to be amended.It can adopt "transfer notice" and "counter notification procedures to make the" safe harbor " rules more applicable in the patent law.