A Study Of The Application Of The Notice-Deletion Rule In The Patent Field

With the development of Internet technology,online patent infringements occur at intervals.In judicial practice,only the principle provisions of “notice and take down” procedure in Tort Liability Law can be applied.Due to the professional and complex characteristics of patent infringement judgment,internet service providers cannot accurately know their obligations,which weakens patent protection.To this end,the fourth amendment of Patent Law officially formalizes “notice and take down” procedure into the patent field for the first time.Throughout the process of patent law modification,there have been constant concerns and debates in the theoretical community as to whether “notice and take down” procedure should be applied to the patent field,and the voice of opposition has always existed.Therefore,to clarify the applicable dispute,which is beneficial for the future judicial application,the significance of this paper is to study the application of “notice and take down” procedure in the patent field under the background of the fourth amendment to Patent Law.Through the introduction and summary of the current practice and existing disputes of the application of “notice and take down” procedure in the patent field,the paper summarizes three issues concerning the application of “notice and take down” procedure in the patent field.Firstly,whether “notice and take down” procedure should be included in patent law.This is because there are defects in the existing legal provisions of “notice and take down” procedure in the domestic patent field.However,the particularity of patent right,the current situation of judicial protection and the practice of Internet industry all put forward requirements for the legal application of Patent Law.Therefore,in order to provide clear guidance for the application in the patent field,“notice and take down” procedure should be included in this amendment.Secondly,constitutive requirements for qualified and effective notice.If there is no constitutionality of a qualified effective notice,there will be no reasonable basis for requiring the responsibility of internet service providers.Because only the qualified and effective notice will lead to the presumption that internet service providers awared of the infringement,and then internet service providers have the obligation to delete.Thirdly,the coordination of “notice and take down” procedure and the pre-litigation injunction system in the patent field.Therefore,combining judicial practice cases and previous studies,this paper is divided into four chapters to demonstrate the application of “notice and take down” procedure in the patent field.The first section of chapter one respectively introduces the origin and development of “notice and take down” procedure and the reference and transplantation of it in China.The second section introduces the judicial status of the application of “notice and take down” procedure in the patent field,and the disputes arising in the academia during the fourth amendment of Patent Law.Then,in the third section,the paper summarizes the problems about the application of “notice and take down” procedure in the patent field.Chapter two discusses the inclusion of “notice and take down” procedure in patent law.By analyzing the existing legal rules of “notice and take down” procedure in the patent field,this paper proposes to add “notice and take down” procedure in the patent law.Chapter three aims at the lack of legal provisions on notice of “notice and take down” procedure in the patent field and the unclear definition of qualified and effective notice in judicial practice,analyzing the necessity of defining the composition of qualified and effective notice.Then combining with the comparative study of domestic and foreign experience,the paper puts forward the specific constitutive of “notice and take down” procedure in patent law.Chapter four studies how to harmonize “notice and take down” procedure with the pre-litigation injunction system.The first section analyzes the relationship between the existing “notice and take down” procedure and the pre-litigation injunction system.Specifically,both “notice and take down” procedure and the pre-litigation injunction system have the remedy effect,but the applicable requirements and procedures are different,and the abuse of the current “notice and take down” procedure will lead to the consequence that the pre-litigation injunction system in the patent field is ignored.Then,the second section suggests that the application relation of the two systems should be distinguished from putting forward corresponding detailed suggestions from the perspective of evading the abuse of “notice and take down” procedure,in order to prevent the dissolution of the injunction system before patent litigation,and clarifying their respective application space,so as to coordinate the application in the patent field.Through the discussion and analysis of this paper,the fourth amendment to Patent Law should incorporate a “notice and take down” procedure to address problems arising from practice.We can get a new “notice and take down” procedure that fits the patent field,making it clear that the relevant disputes in the patent field only apply to the provisions in the patent law,so that the judicial application in the future patent field has laws and evidences to follow.First of all,the core elements of qualified and effective notice are the written judgment,order or conciliation statement made by the people's court,or the decision of the administrative department of patent work to order the cessation of infringement.On this basis,set up a complete qualified effective notice of the constituent requirements which a notice is required to meet certain formal requirements and substantial requirements.In addition,it is necessary to specify the specific requirements for internet service providers to accept the notice of patent infringement complaints according to their own business conditions and examination needs within the scope stipulated by law.Secondly,from the perspective of harmonizing “notice and take down” procedure and the pre-litigation injunction system in patent field,“notice and take down” procedure in patent law should be changed to prevent the elimination of the pre-patent injunction system.This paper suggests that the protection of network users' rights should be properly strengthened,and the expected behavior of internet service providers should be made clear.Furthermore,to clarify their respective application space and value,and to harmonize the relationship between “notice and take down” procedure in patent law and the pre-litigation injunction system to ensure the effective implementation of the rule.