Reflection On The "notice Deletion" Rule Of Patent Infringement In The Field Of E-commerce

With the rapid development of e-commerce,patent infringement cases of e-commerce platform occur frequently,and intellectual property protection is facing new challenges.In order to solve the patent infringement disputes of e-commerce platform,China began to try to apply the "notice deletion" rule in the field of copyright to patent infringement,requiring the e-commerce platform to immediately take the removal measures such as deleting,blocking links and so on after receiving the qualified and effective notice from the patentee.The legislative department also tried to introduce the rule into the patent law,but since the publication of Article 63 of the revised draft of the Patent Law(Draft for examination),it has attracted the attention and controversy of the theoretical and practical circles.To consider whether the "notice deletion" rule can be applied to patent infringement in the field of e-commerce,we need to combine the main viewpoints of the academic community,understand the origin of the "notice deletion" rule and the internalization of the system,and take the practical difficulties,theoretical barriers,empirical analysis without practical basis,foreign experience and suggestions of the application of the "notice deletion" rule in the field of patent as the thinking to deeply analyze the "notice deletion" The premise of application of the rule of division,the theoretical system and characteristics of patent right.The research is divided into five parts,as follows:The first part mainly studies the origin and development of "notice deletion" rule in China.The "notice deletion" rule originated from the "Digital Millennium Copyright Law" of the United States,aiming at the copyright infringement in the field of network,has achieved good results and been used for reference by other countries.China's "Regulations on information network communication" first introduced "notice deletion" into the field of copyright.In recent years,the rule has been applied to the field of patent infringement in practice,and the legislation has also tried to introduce the rule into the field of patent.In 2019,the "notice deletion" rule has been introduced into the e-commerce law,and it has been reformed,but it still can not overcome the dilemma of application in the field of patent.The second part summarizes the main problems existing in the application of "notice deletion" rule in the field of patent.The "notice deletion" rule was originally applicable to the field of copyright.Due to the great difference between patent and copyright in the right form and infringement judgment,the rule is not only of low applicability in the field of patent,but also unclear in the responsibility identification of e-commerce platform.In the process of practice,there are many problems,such as the proliferation of malicious notices,the disaster of "patent hooligans" There are frequent disputes in error deletion,difficulties in the remedy of the rights of the respondent,and the pre litigation injunction system of overhead patent,etc.The third part theoretically analyzes the applicability of "notice deletion" rule in the field of patent.Due to the particularity of patent infringement,it is difficult for e-commerce platform to judge whether it is infringing or not,and it does not have the applicable premise of "information" carrier form.The application of this rule will not only violate the basic theory of patent system,but also be inconsistent with the principle of indirect infringement liability,and will distort the legal status of e-commerce platform.The fourth part is an empirical analysis of the practice and judicial cases.It is found that the application of this rule in the field of patent has not only no theoretical basis,but also no practical basis.In practice,most of the obliges directly sue the accused in finger by bypassing the notice,and the e-commerce platform is also difficult to bear the liability for compensation.If the link of the respondent is deleted due to the notice error,the respondent's relief difficulty is also a huge problem.The fifth part puts forward suggestions on the protection of patent rights in the field of e-commerce based on foreign experience.The United States,the European Union,Japan and other developed countries have maintained a cautious attitude towards the application of "notice deletion",which has not been extended to the patent field in legislation and practice,and the new round of international intellectual property legislation has not applied the "notice deletion" rule to the field of patent infringement.Finally,on the basis of denying the application of this rule in the field of patent,taking the balance of intellectual property protection and the development of e-commerce industry as the starting point,this paper puts forward suggestions on reconstructing the patent infringement system and improving the supporting legislation and measures for patent protection.