Research On The Application Of "Notice-delete" Rule Of Patent Infringement On E-commerce Platform

The "notice-delete" rule stem from the United States,which means that when the copyright are infringed on the network,he can give notice to the network service provider(NSP).If the NSP delete the infringing works,it will be exempted from liability.With the development of China’s e-commerce economy,there are more and more patent infringements on business platform.Patent infringement in e-commerce impede the development of economy.To address this problem,the "notice delete" rule,which is used to correct the network copyright disputes,has become the solution to the problem.However,because the "notice-delete" rule wasn’t used to adjust the patent infringement of e-commerce platform at first,it caused some problems in practice.The main performance is as follows: First of all,in terms of theoretical guidance: there is a lack of unified theoretical guidance for the application of "notice deletion" rule in the patent field.Then,in terms of rule design the standard of effective notice is not clear,the e-commerce platform does not stipulate the obligation to check the notice;the requirements of effective notice are not clear according to the characteristics of patent infringement;Lack of detailed explanation of necessary measures,which makes the e-commerce platform have no choice but delete the notice after receiving the notice;The lack of necessary guarantee measures and effective regulatory means makes the abuse of the right of notice in the e-commerce platform occur frequently.Finally,in terms of concrete practice: e-commerce platform has poor ability to review notifications.Lack of relief for operators in the e-commerce platform,and the legitimate rights and interests of the operators in the platform are difficult to guarantee.All these make it difficult to apply the "notice delete" rule to patent infringement.For the sake of make the "notice delete" rule get better use in patent infringement disputes of e-commerce platform,I sum up the experience between domestic and abroad,and search out the applicable method of the notification deletion rule in our country.In theoretical phases: adhere to the balance of interests as the main line,guide the design and improvement of rules.In terms of improving the design of rules: Stipulate the formal and substantive requirements of effective notice;Let e-commerce platform review notice,accelerate the process of judicial interpretation and expand the necessary measures for interpretation;Introducing the deposit system to reduce the patentee abuse rights.In terms of improving the applicability of rules: Strengthen the cooperation between e-commerce platform and patent administrative agencies,so as to improve the ability of platform examination notice;Enhance the relief for operators in the platform,clarify the scope of losses caused by wrong notice,shorten the duration of necessary measures,clarify the scope of compensation caused by wrong measure.Reverse the burden of proof for the notifier who is malicious in the case.