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Applicable Research Of "Notice-Delete" Rule In Patent Domain

Posted on:2019-07-04Degree:MasterType:Thesis
Country:ChinaCandidate:R H LiuFull Text:PDF
GTID:2416330548453140Subject:legal
Abstract/Summary:PDF Full Text Request
The "notice-delete" rule means that the oblige sends a "notice" to the network service provider.After receiving the "notice",the network service provider take some necessary measures such as deletes,shields or disconnects links of the infringing content uploaded,which are exempt from tort liability.The "notice-delete" rule initially prescribed in the United States' Millennium Digital Copyright Law(DMCA),which contains a series of supporting mechanism of "counter-notice" procedures,the composition of the "notice" and the legal responsibility of "error notice".The "notice-delete" rule maintains the balance of interests between copyright owners and ISPs,leading to copyright protection on the Internet.However,with the continuous development of society,the forms of Internet infringement are becoming ever more diverse.In recent years,although the rapid development of the internet and the emergence of e-commerce conducive to the economic development of the country,it posed a serious and thorny issue--internet patent infringement.In order to solve this problem,the "notice-delete" rule which has achieved good results in copyright network protection,has already extended to the patent field.In our country,the "notice-delete" rule "works well" in the field of patents with the promulgated of "Tort Liability Law".Article 36,paragraph 2 of the Tort Liability Law have prescribed the "notice-delete" rule.However,throughout the law,in addition to the contents of the article,there are no other legal provisions to elaborate on the rule.Besides,a series of supporting mechanisms,which cannot be ignored for "notice-delete" rule,have not yet mentioned.It's difficult for network service providers to grasp their own responsibility when it refers to complicated patent infringement,for they can't effectively protect the patent rights,and also put themselves in the untoward position of tort liability and breach of contract.Therefore,in the fourth revision of the Patent Law,aimed at responding to the frequent disputes over network patent infringement,the legislator intends to assimilate the "notice-delete" rule.This is stated in the "Draft Revised Patent Law of the People's Republic of China(Draft for Review)"(Hereinafter referred to as " Draft Amendment to Patent Law(Draft for Review)").In this background,the author introduce the relevant content of the "notice-delete" rulein detail after combines the scholars' previous researches,then have a specifically studying of the rules in the patent field of application,which specified the application of the dilemma and combined with theoretical analysis and judicial practice to put forward relevant recommendations and formed this article.This article is divided into five parts:The first part introduces the meaning and specific content of the "notice-delete" rules.The "notice-delete" rule is not just a single legal rule.Conversely,it has rich connotations that include the procedures of "counter-notice-restoration",elements of "notice and counter-notice" and legal liability of "error notice".The second part elaborates the relevant legislation of the "notice-delete" rule at home and abroad.This article mainly introduces the relevant legal provisions of the EU,Japan and China.From this we can see that the scope of application of the "notice-delete" rule has gradually expanded.At present,the Draft Amendment to the Patent Law(Draft for Review)specifically stipulates the application of the "notice-delete" rule in the field of patents.The third part defines the legal status of the provider of internet trading platform.Through analyzing different theories of the legal status of internet trading platforms' providers and the specific models of internet transactions,the author believes that the legal status of providers of internet trading platforms should be treated differently according to the content of their services or the difference of their participation status.The fourth part describe the application dilemma of the "notice-delete" rule in patent field,which specifically include: the first,the constitutive requirements of the "notice" is not clear.The elements of the "notice" include both form and content.However,the current legislation does not stipulate the requirements of the "notice" for patent infringement,which makes it difficult to determine the validity of the "notice" and leads to the non-uniform judicial practice.Second,the obligation of providers of online trading platform is unclear,which is what extent the providers should do to review the "notice".Third,the "counter-notice" procedure is missing.Neither the Tort Liability Act nor the Draft Revision of the Patent Law(Draft for Review)mention any "counter-notice" procedure,which violates the "procedural justice" and damages the lawful rights and interests of those who are notified.Fourth,the legal regulations on "false notification" are inadequate.The existing legislation lacks specific provisions on the "false notification" of the patentee.In practice,it is usually regulated as an act of unfair competition via the principle of good faith.And there is no unanimity thatwhether the provider of online trading platform constitutes a breach of contract in this process or not.The fifth part presents the relevant recommendations to improve the "notice-delete" rule.Firstly,I think we must clear the elements of "notice".The "Notice" should be written and its content should include four aspects,complement-ally,the author affirmed the de facto "notice".Secondly,it is necessary to clarify the review obligations of the providers of online trading platforms.This paper argues that the obligation of substantive examination of the "notice" by providers of online trading platforms should be excluded.In addition,it is necessary to stipulate the "counter-notice" procedure in the specific design of the "notice-delete" rule.In this regard,the author refers to Professor Wang Qian's "notice,transfer notification and removal" rules,and expressed a few of my own thoughts.Finally,we should make up for the inadequate legal regulation of "error notice." The author thinks that we can regulate the "false notification" behavior of patentee according to the relevant provisions in the field of copyright.At the same time,the network transaction platform provider should be exempted from this liability for breach of contract.Finally,hoping this article can provide a few reference to the provisions of the "notice-delete" rule in this modification of patent law.
Keywords/Search Tags:"notice-delete" rule, Internet trading platform provider, the Draft Amendments to the Patent Law, applicable dilemma, system consummation
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