The Predicament And Perfection Of The Application Of "Notification-Delete" Rule In Patent Field

“Notice and take down”rule originally came from the Digital Millennium Copyright Act 1998,and then was used as reference by China?European Union and many other countries.With the rapid development of the Internet technology,the online infringement is booming.Although the chinese electronic commerce leads in the world,the online infringement is emerging in an endless stream.In the meantime using intellectual property right to claim for compensation is endemic.The rapid development of the internet technology and economy make the regulation in the online infringement is outdated.It is a serious problem how to balance the benefit of the E-commerce platform provider?intellectual property holder and the online seller.It is an internal theme and aim to make a balance between intellectual property holders and the public interest.Just under this background,when the new amendment of the patent law starts,the application of “notice and take down” rule is expanded to the patent law which is used as a tool to solve the problems among the E-commerce platform provider?intellectual property holder and the online seller.This essay begins with the origin and development of the “ notice and take down” rule,including the background?applicable conditions and a series of coordinated measures.The main part is the particularity of the patent and the flexibility when it is put into practice.And then some suggestions are given to improve and perfect the law.This essay contains the following four parts outside except the introduction.Part One: summarize of the “notice and take down” rule from the background and the comparison law.The first section is the origin of the “notice and take down” from the domestic and foreign aspect.The second section is to research on this rule deeper with the specific provisions of “notice and take down” rule in China?America and European Union.Part Two: It explains that it doesn't work to implant “notice and take down” rule from the field of the copyright law directly.In the first section,it illustrates that the rule just regulates communication of information on networks and the application of Paragraph 2,Article 36 in The Tort Law of the People's Republic of China is limited.The second section mainly discusses about the flaw of the Draft Revision of the People's Republic of China Patent Law(hereinafter referred as “Draft Revision”)in the “notice and take down” provision.Part Three: it discusses the problem that puts the “notice and take down” rule into patent infringement practice.The first section explains that “notice and take down” rule causes the false notice was sent frequently and the obligation of E-commerce platform provider is not clear.And the second section explains that the “notice and take down” is becoming a tool of unfair competition and because of the problem that the application is not consistent in the juridical practice.Part Four : Based on the foregoing,there are some suggestions are given in this part to improve and perfect the “notice and take down” rule.The first suggestion is to perfect the formality of the notice.And furthermore,the essay suggests that the law shall also stipulate the formality of the “counter-notice” and the infringement liability of the one who sends the wrong notice.