| The research object of this paper is the application of "notice-delete" rule in patent infringement in the field of e-commerce.The promulgation of "Electronic Commerce Law" makes this rule develop on the original basis.However,due to the lack of uniform recognition standards and related legislative defects,disputes and difficulties often arise in the application of patent field.On the basis of studying the theoretical basis of the "notice-delete" rule,expounding the particularity of patent infringement,summarizing the position and responsibility of e-commerce platform operators,combining with case studies and overseas studies,this paper puts forward theoretical views aiming at the controversial focus of theoretical circles,and puts forward relevant suggestions for practical application.Firstly,this paper analyzes the applicable theories.Starting from the origin and development of the "notice-delete" rule,this paper leads to the following legislative defects.At the same time,it summarizes the particularity of patent infringement,the legal position and legal responsibility of e-commerce platform operators.Provide theoretical basis for the following research;Secondly,on the basis of sorting out and analyzing some typical cases in judicial practice,the defects in current legislation and disputes arising in judicial practice are obtained,and it is concluded that the application of rules not only fails to play its due role,but pulls the platform operators and platform operators to the opposite of contradiction,with the remarkable focus on the high standards involved in the platform’s duty of reasonable care,the vague effective conditions of the constituent elements of notification,and the difficulty in identifying legal responsibilities.Thirdly,it analyzes whether the rules can be applied to patent infringement.By studying and comparing the extraterritorial application situation,it is concluded that the application of rules beyond the copyright field is a common international practice,which provides a basis for the feasibility of application.At the same time,starting from the necessity of right urgency and the necessity of judicial practice,it is concluded that the rules can be applied by combining the feasibility analysis of legislation and technology.At the same time,it is proposed that relevant legislation and supporting systems should be improved,so as to achieve the balance of interests among patent rights holders,platform operators and platform operators.Finally,some suggestions are put forward on the application of rules in patent infringement of e-commerce.This paper will elaborate from two aspects: legislative proposal and supporting system design.In the legislative proposal,the author suggests to clarify the independent third party status of e-commerce platform operators,at the same time reduce the reasonable duty of care of e-commerce platform,and at the same time introduce relevant laws and regulations to clarify the constituent elements of notice issued by right holders;In the suggestion of perfecting the supporting system,the introduction of "antinotification-recovery" procedure is beneficial to balance the rights between the obligee and the operators in the platform,and the introduction of the cooperation mechanism of the third-party professional organization and the establishment of the margin system can effectively relieve the pressure of the platform’s review. |
