Research On The Review Obligation Of Patent Infringement Notice Of E-commerce Platform

On September 22,the state council issued the “Outline for building an intellectual property power(2021-2035)”,which clearly calls for the establishment of a more complete Intellectual Property Law legal system and an intellectual property protection system that supports the world’s first-class business environment.The State Council,in its 2021,issued the “Outline for building an intellectual property power(2021-2035)”,it fully demonstrates that the state attaches great importance to the development of intellectual property rights.However,the phenomenon of infringement of intellectual property rights in the current e-commerce transactions has been repeatedly prohibited.Because of its own characteristics,patents are more vulnerable to infringement and the infringement damages are relatively serious,in patent infringement cases,the right holder often sues the platform of e-commerce to take the corresponding responsibility,but the responsibility of e-commerce platform patent infringement cases is a difficult problem in current judicial judgment.In 2006,China officially introduced the “Notice-deletion”rule in the“Regulations on the protection of the right to information network dissemination”,and has continuously improved it through legislation and judicial practice,from “Tort liability law”,“Electronic commerce law”to “Civil Code”,the rules of intellectual property protection in the field of electronic commerce have been gradually established,“Notice-delete”rule is also used to judge the liability of e-commerce platform for infringement.The “Notice-delete”rule means that the right holder has the right to immediately issue a“Notice”to the e-commerce platform when he finds that the e-commerce platform contains a product that infringes his patent right,take measures such as deleting or blocking links to the infringing products and related information involved in the notice,and forward the “Notice”to the alleged infringer,after taking these measures,e-commerce platform will be exempt from liability for infringement.Whether the e-commerce platform should be censored before it receives the “Notice”has been the focus of controversy in the current academic circles.The author believes that e-commerce platform should undertake the corresponding obligation of review,and e-commerce platform can raise the applicable threshold of“Notice-delete”rule,it can not only reduce the occurrence of patent infringement but also guard against the risk of being involved in infringement liability.On the basis of this,this paper tries to balance the interests of all parties by constructing the duty of review of patent infringement notice on e-commerce platform,and perfect the application of notice-delete rule in e-commerce field.In addition to the introduction and conclusion,the text is divided into four parts.The first part is the theoretical basis of the duty to review the patent infringement notice of e-commerce platform.Through the discrimination of related concepts,this paper makes clear the basic connotation of the duty to review the patent infringement notice of e-commerce platform discussed in this paper,and points out that after e-commerce platform receives the patent infringement notice issued by the patentee,there is an obligation to review the content of the notice before taking measures such as deletion,depending on the outcome of the review.It is not only in line with the legislative aim of notice-delete rule,but also in line with the need of protecting the development of e-commerce platform patent.The second part,e-commerce platform patent infringement notice review obligation status and problems.This paper analyzes the current situation of legislation,judicature and industry autonomy,and concludes that the current development of e-commerce platform patent notice review is not standardized,the main problems are as follows: the law is not clear about whether there is a notification review obligation;the standards and procedures of e-commerce platforms to fulfill the review obligation are not standard;The requirements of the notice issued by the patentee are not detailed and the liability of the platform for violating the patent examination obligation is not clear.The third part,e-commerce platform patent review obligation of foreign experience for reference.Separately from the legislative and judicial aspects of the extraterritorial “Notice-delete”rule to comb the application.Taking the United States and the European Union as examples,from the perspective of typical cases,this paper examines the relevant contents of the review obligation in the legislative and judicial practice of the system,from the standard platform subjective identification standards and clear platform industry standards in the judicial identification of the effectiveness to be used for reference.The fourth part,the electronic commerce platform patent infringement notice examination duty consummation suggestion.Firstly,in the aspect of legislation,through improving the relevant provisions of the “Electronic commerce law”and “Patent Law”,it is clear that e-commerce platform has the duty to examine the notice of patent infringement.Secondly,make clear the subject and content of the notice of compliance,because the effective notice of compliance is the prerequisite for the platform to review.Then,it makes specific provisions on the principles,standards and forms of notice review,with a view to establishing a perfect notice review mechanism.In the aspect of the infringement liability caused by the violation of the obligation of review,this paper analyzes the components of the liability and the way of the liability.Finally,the author suggests that we should improve the related measures by introducing the third party examination organization and constructing the cooperation protection mechanism of e-commerce patents.