Research On The Joint Liability Of Patent Infringement Of Internet Service Providers

In recent years,online commodity trading has continued to grow rapidly in the market share of commodity trading by virtue of its convenience and the function of widely cutting down the searching cost.It has also become the main means of consumption in human daily life.But at the same time it has also brought about some new legal issues.Typically,with the development of online commodity trading,online intellectual property infringements,which once mainly appeared in the field of trademarks and copyrights,and now are gradually extending to the patent field.At present,there are many patent infringement disputes related to online trading platforms,involving a wide variety of goods and exerting huge impacts.Repeated and large-scale patent infringements frequently occur,posing new challenges to the traditional patent protection system.In order to effectively address this challenge,the Patent Law Review draft has specifically specified the “Notify-Remove” rule.However,from the perspective of legislative trends,the proposed amendments to the Patent Law almost indiscriminately imitated the provisions of Article 36 of the Tort Liability Law.Moreover,the protection of internet patent is different from other civil rights,especially considering the particularity of internet copyright infringement has not been fully taken into account.This will cause the internet service providers to assume excessive review obligations,trigger abuse of rights,and thus affect the healthy development of online commodity transactions.The subsequent draft of the Patent Law Amendment clearly absorbs the existing theoretical research results and notes the application of the “Notify-Remove” rule to the many problems arising from the practice of the patent field.On the basis of the relevant provisions of the Tort Liability Law,the internet service provider is removed from the obligation to review the “notice” and the “notify-remove” rule is amended to the “effective legal instrument-remove” rule.The evolution experience of Internet intellectual property protection rules at home and abroad shows that the regulation of internet patent infringement lies in how to set the patent infringement liability of internet service providers.To this end,based on the current status of internet patent infringement,based on the normative and empirical analysis of patent infringement liability of internet patent service providers,this paper proposes to improve the joint liability of patent infringement of internet service providers in China from two aspects: ideas and countermeasures.The research is mainly divided into the following aspects: The first is to define the patent infringement liability of internet service providers,and to sort out the basic types ofpatent infringement liability of internet service providers.Second,systematically analyze the internet service provider's patent infringement joint liability.First of all,the current relevant norms are sorted out,including Article 8 of the Tort Liability Law,Article 9 of the Tort Liability Law,Article 36 of the Tort Liability Law,and Articles42 and 43 of the Electronic Commerce Law;The applicable dilemma of the“Notify-Remove” rule and the “Know” rule of Article 36 of the Tort Liability Law was discussed.Thirdly,empirical study is carried out based on the sample of cases related to patent infringement liability of internet service providers of the recent five years.Through sorting out and analyzing related judgment documents,the paper achieves to find out the main issues reflected by the judgement,and then clearly point out the necessity of special legislation for patent infringement liability of network service providers,as well as the problems that should be solved.Finally,the legislative ideas and specific countermeasures for improving the joint liability of patent infringement of internet service providers are put forward.The study believes that the internet service provider patent infringement joint liability special legislation needs to fully take into account the special nature of patent infringement,coordinate the relationship between civil general law and special law,and reasonably balance the needs of rights protection and industrial development;At the normative level,while further clarifying the connotation of “know” in Article 36 of the Tort Liability Law and the obligation of the “transfer notice” of the internet service provider in the draft of the Patent Law Amendment.It is also necessary to establish a professional patent infringement judgment institution and optimize the construction of credit system to achieve the legislative goal of system regulation of internet patent infringement.