Research On Patent Infringement Liability Of E-Commerce Platform Operators

With the rise of e-commerce,and individual rights protection awareness is stronger.Therefore,intellectual property infringement disputes in the e-commerce field are more likely to occur than before.However,the laws is difficult to cope with the problems brought by the rapid development of e-commerce.Among them,patent rights are facing practical difficulties due to their outstanding characteristics.Therefore,it is necessary to study patent infringement in the field of e-commerce.This article attempts to discuss the basis of responsibility,and to discuss the dilemma and liability of patent infringement on e-commerce platform operators combining the e-commerce practice,patent characteristics,and current laws,and to consider the improvement of China’s relevant legal system.In addition to the introduction and conclusion,the text is divided into four parts:The first part of the article discusses the basis of patent infringement liability of e-commerce platform operators.The first is to clarify the relevant concepts.Due to the characteristic of operation,the concepts of e-commerce operators and network service providers are obviously different,and the former includes the latter.Then analyzing the nature and behavior of e-commerce platform operators.They are technical,neutral,and commercial,which in turn makes they have certain rights in specific behaviors.So they should also assume corresponding obligations and responsibilities.Finally,the relevant laws and regulations are analyzed.The scope of application ranges from the general application of infringement to the application of intellectual property infringement,to the special application of patent infringement.It can be seen that e-commerce platform operators bear legal liability for patent infringement.But it can be found that there are application problems in combination with practice.The second part of the article analyzes the dilemma in determining the patent infringement of e-commerce platform operators.Firstly,analyzing the general rules for the determination of intellectual property infringement on e-commerce platform operators,that is,the principle of fault liability is adopted..And the subjective determination is the standard of "should know",and the way of bearing responsibility is joint and several liability.Secondly,it analyzes the particularity of patent rights,which is obviously different from copyright and trademark rights.The differences between diverse patents for inventions,utility models and designs also make it difficult to handle the protection of patent rights in a unified manner.The peculiarity of patent rights makes it difficult for infringement review and supervision.Combined with the legal analysis of the issue of the uniform application of the "notification-deletion" rule,the same rule may increase the obligations and consequences of e-commerce platform operators in the field of patent rights.The third part of the article is thinking about the liability for patent infringement on e-commerce platform operators.Firstly,it analyzes the differences between extraterritorial and Chinese legislative models.The exemption clauses that originated in the United States are imputation clauses in China.And extraterritorial legislation is cautious in the application of patents,while China is unified on the intellectual property be applicable.Then,referring to extraterritorial experience,the issue of liability for patent infringement on e-commerce platform operators is further explored.The application of subjective requirements to the status of "should know" should be more cautious,different recognition schemes can be adopted for different patents,and the way of bearing should not be limited to simple joint liability.Setting of rules should be suitable for e-commerce and patent rights,and can take into account the three parties’ interests of e-commerce platform operators,the right holders and the operators in the platforms.The fourth part of the article is to consider the improvement of the patent infringement liability system of e-commerce platform operators.The detailed application of rules can be started from e-commerce platform operators and the patentee.And then bring special rules suitable for patent rights.On the one hand,the primary task of e-commerce platform operators in the field of patent rights is to complete the obligation of information transmission,and then to formally review the "notification".Whether to adopt "should know" and its standards when taking necessary measures needs to be further considered.On the other hand,standard of "qualified notification" can be revised and improved based on practical experience.The identification and imputation of "error notification" need to clearly identify the elements.Finally,consider setting rules based on the type of patent.And "forwarding-notification" and "counter-notification" can be selected.In order to prevent the frequent sending of false or malicious notifications,a notifier guarantee system can be established.It can increase the cost of notifications and reduce the obligations of e-commerce platform operators.