On The Application Of The Notice-takedown Rule In Patent Infringement Disputes On E-commerce Platforms

After the adoption of the fourth amendment to the Patent Law,the "Notice and Takedown" rule proposed to be transplanted in Article 63 of the Draft Amendment to the Patent Law has been deleted,and the "Notice and Takedown" rule modified in Article 71 of the Draft Amendment to the Patent Law has not been introduced.However,this move does not resolve the application of the "Notice and Takedown" rule in the patent field,and raises the question of the interpretation of the application of the Civil Code(Tort Liability Code)and the Electronic Commerce Law.Most of the existing studies on the "Notice and Takedown" rule are limited to the theoretical level,and lack of investigation on the actual operation status of the rule in China's e-commerce platform patent infringement disputes and the actual influencing factors.In view of this,this paper first discusses the origin,development outside the domain and development within the domain of "Notice and Takedown" rule.This paper analyzes the legislative development and judicial application of the "Notice and Takedown" rule in the United States,Japan and other countries,summarizes their useful experience,and then analyzes the development and change of the "Notice and Takedown" rule in China through sorting out the legal system of the "Notice and Takedown" rule,and makes a comparative study of the two.Secondly,it discusses the dilemma of the application of "Notice and Takedown" rule in the patent infringement of e-commerce platform.Such problems include the limited review capacity of e-commerce platforms,or the abuse of the "Notice and Takedown" rule,the imbalance of interests of all parties,and the vacancy of the existing pre-lawsuit injunction system.Through sorting out the possible difficulties of the introduction of "Notice and Takedown" rules,so as to make targeted reform.Thirdly,it demonstrates the necessity and feasibility of applying "Notice and Takedown" rule to patent infringement of e-commerce platform.It includes practical needs,self-governing practice of e-commerce platform,theoretical basis,judicial practice and so on.Specifically,China's e-commerce platform patent infringement situation is severe,and the existing legal system is not yet able to respond well to the issue of "Notice and Takedown" rules for patent infringement application of e-commerce platforms,while large e-commerce platforms in China have also established distinctive "Notice and Takedown" rules in platform autonomy.On the theoretical level,this paper demonstrates the legislative purpose of the Internet tort clause and the due meaning of the duty of care theory to respond to the naysayers' views.Finally,it is to put forward concrete suggestions to improve.First,it is necessary to clarify the legal status and legal obligations of e-commerce platform operators.Secondly,specific suggestions are put forward to improve the application of the rule,including clear identification criteria of qualified notice,definition of necessary measures,and consideration of duty of care.Third,it is suggested that e-commerce platforms should establish corresponding supporting mechanisms for the application of "Notice and Takedown" rule according to their actual situation.Therefore,on the basis of empirical research on the application of the "Notice and Takedown" Rule in the patent field,this paper give some advice to perfect the specific procedures of the "Notice and Takedown" Rule and establish a matching system,hoping to be of benefit to the application of the "Notice and Takedown" Rule in the patent infringement disputes of China's e-commerce platforms.