Study On Liability Of E-Commerce Platform For Patent Infringement

The liability of E-Commerce Platform for patent infringement in China is mainly prescribed by the Notice and Takedown Rules and the Knowledge rules,and the Patent Law Amendment is crucial to support the improvement and development of the regulations.However,deficiencies exist in the rules of the Draft Patent Law Amendment.To overcome the deficiencies,relevant rules of E-Commerce Law is worth learning.The Notice and Takedown Rules and the Knowledge rules mainly define the duty of care and the examination duty of E-Commerce Platform.The duty of care should aim to the seller and the commodity,and the E-Commerce Platform shall not bear joint liability for the infringement if he can prove the seller has qualified license to sell or offer for sale the commodity from legal sources.Regarding the examination duty,since the patent infringement analysis is too complicated for the E-Commerce Platform to reach a definite correct conclusion,the E-Commerce Platform shall execute formal examination on the notification and counter notification and prima facie evidence rather than execute substantive examination to perform patent infringement analysis.The Office of Safeguarding IP Rights affiliated to CNIPA shall allow the patentee,in addition to the E-Commerce Platform,to request for written opinion of infringement analysis.In order to increase dealing efficiency and decrease unnecessary loss,in the case that the E-Commerce Platform takes necessary actions during the notice-counter notice procedure,an optional procedure may be available for the seller to provide a security,and another optional procedure may be available for the patentee to provide a counter security based on the written opinion of infringement analysis of the Office of Safeguarding IP Rights.In the case that the seller voluntarily decides to provide a security and request for the immediate termination of the necessary actions,the E-Commerce Platform may immediately terminate the necessary actions.In the case that the patentee can provide the written opinion of infringement analysis from the Office of Safeguarding IP Rights which preliminarily confirms the patent infringement,the E-Commerce Platform shall maintain the necessary actions.With all parties making their own decisions,abuse of rights may be avoided.It is consistent with the principle of procedural economy,and the patentee,the seller and the E-Commerce Platform can all be well protected.The introduction of the above rules into the Patent Law Amendment can facilitate the improvement of the regulations on the liability of E-Commerce Platform for patent infringement in China.