Research On The Application Of Deletion Rules In Patent Infringement Of E-commerce Platform

The development of electronic commerce brings new challenges to intellectual property protection,which is reflected by the frequent infringement of patents on e-commerce platforms.In order to solve the patent infringement disputes of the e-commerce platform,the "notification-deletion" rule was introduced into the patent field in judicial practice.In order to adapt to practice,the 2015 Patent Law Amendment Draft(Review Draft)also added 63 "notification-delete" relevant provisions.However,the provisions of this article basically copy the provisions on "notification-deletion" in Article 36 of the Tort Liability Act,and do not consider the characteristics of patent infringement.If the "notification-delete" rule in the "Review Draft" is applied in practice,the following defects will exist.First,it does not consider the complexity and professionalism of patent infringement judgment,and directly applies the existing "notification-delete" relevant regulations.At present,in judicial practice,when the court applies the rule in the case of patent infringement on the e-commerce platform,it mainly bases itself on the Tort Liability Law in the determination and assumption of tort liability.The relevant provisions of the Regulations on the Protection of the Right to Disseminate Information Networks are mainly used in the determination of effective forms of notifications and necessary measures.The "Regulations on the Protection of the Right of Information Network Dissemination" is used to resolve online copyright infringement disputes.Patent infringement is different from copyright infringement,and patent infringement judgment is more complicated and professional.When the "notification-deletion" rule is used to resolve patent infringement disputes on e-commerce platforms,if the "notification-deletion" provision in the copyright field is directly applied,it will lead to a dispute over the application of the rule in practice.It is mainly reflected in the disputes between the e-commerce platform and the court on the effective notification requirements and the e-commerce platform notification review obligation.Second,the "Review Draft" did not form a complete mechanism when it stipulated "notification-delete".It is mainly reflected in the absence of a remedy system for theperson complained of,such as counter-notice,transfer notice,and error notice,as well as the lack of regulation of the notifying person's abuse of notice rights.After studying the application status of the "notification-deletion" rule in patent infringement on e-commerce platform,this paper believes that under the background of the "patent law" revision,the construction of "notification-deletion" rule should be combined with the characteristics of the complexity and professionalism of patent infringement judgment.When proposing the system of "notification-deletion" in the Patent Law,it should be clear that "notification-deletion" does not apply to the subjective difficulty of patent infringement judgment;To clarify the effective elements of the notice and avoid disputes arising from its application in practice;Clarify the review obligations of the e-commerce platform and clarify the responsibilities of the platform;The establishment of a security system to regulate the abuse of the right of notification by the patentee;We will improve the system of remedies for complaints,establish a system of counter-notification and a system of remedies for damages for wrongful notices.