Research On The Introduction Of The "Notice-and-Takedown" Rule In The Patent Field

The "Notice-and-Takedown" rule was first seen in the "Millennium Digital Copyright Act" promulgated by the United States in 1998,which mainly regulates online copyright infringements.The "Notice-and-Takedown" rules of countries outside the region only extend to the field of trademarks,but not to the field of patents.After the introduction of this rule in China,the legislation was adopted to increase its legal rank and expand its scope of application.The 2015 "Patent Law Amendment Draft(Submission Draft)" attempted to introduce the "Notice-and-Takedown" rule,but the 2019 "Patent Law Amendment(Draft)" essentially denied the introduction of the rule,and the contradictory attitude of legislation before and after highlighted patent The field introduces the dilemma of the "Notice-and-Takedown" rule.In practice,enterprises have constructed a patent infringement dispute resolution mechanism with the "Notice-and-Takedown" rule as the core;the court has used the "Notice-and-Takedown" rule to hear network patent infringement cases in judicial practice,forming a relatively stable trial idea The “Notice-and-Takedown” rule introduced in the patent field embodies the equality of subjects at the level of personality justice and the distribution of the balance of interests at the level of justice.The value orientation of the article "Protection of the rights and interests of rights holders is better located to promote the development of the Internet industry".The network patent infringement model is special.The professionalism of the patent rights object,the ambiguity of the rights boundary,and the instability of the right status make it difficult for the online trading platform provider to determine patent infringement."Rule leads to the abuse of the" Notice-and-Takedown"rule and eliminates the function of the pre-suit injunction system.Based on legal regulations,corporate practice,and judicial trial experience,construct the“Notice-and-Takedown” rule in the patent field,adhere to the principle of both thickness and attention,and pay attention to absorbing the wisdom of the enterprise;clarify the scope of interested parties,and clarify the constituent elements of appropriate notification,False notifications,malicious notifications are responsible;for notifications and counter-notifications,on the basis of formal examination,to exclude obvious unqualified situations;clarify the components of counter-notifications;establish a cooperation mechanism with third-party professional institutions,establish credibility Evaluation mechanism.