Research On The Application Of "Notice And Take Down" In Patent Infringement Litigation Of E-commerce Platform

In the patent infringement cases of China’s E-commerce platform,the application of the"Notice and Take down" rule shows the serious disqualification of notice materials,the contradiction in the judgment of duty of care,the logical confusion in the judgment of necessary measures and so on.The practical problems reflected are:First,the standard of qualified notice is not clear,which fails to regulate the abuse of the "Notice and Take down" rule;Second,the judgment of duty of care is unreasonable,which is difficult to match the role nature of the current E-commerce platform;Third,the judgment of necessary measures is inappropriate,which leads to the increase of legal risks of E-commerce platform and oblige.To strengthen the patent protection of E-commerce platform under the "Notice and Take down" rule,we should clarify the standard of notification of eligibility of complainants,reasonably judge the duty of care of platform operators,and require platform operators to correctly judge the necessary measures they have taken.In terms of form,the elements of patent infringement notice should affirm the rationality of written form and the effectiveness of format text.In essence,it should include the subject identity of effective notice and preliminary evidence of infringement facts.The duty of care of E-commerce platform operators can be proved by social cost theory,risk control theory and trust interest theory.The judgment basis of the duty of care of the E-commerce platform comes from the different business types of the platform and the difficulty of judging patent infringement.According to the different stages before and after notification,the duty of care should be distinguished.When judging the necessary measures,the platform operator shall consider the principle of interest balance and the principle of proportion,and take measures according to the proof strength of evidence,the technology of infringement judgment and the impact of repeated infringement.In order to better apply the "Notice and Take down" rule,we should also improve the implementation level of necessary measures and define a reasonable procedural time limit.