The Research On The Application Of The “Notice And Takedown” Rules In The Field Of Patent

The officially adopted amendment of the Patent Law in 2020 did not include "Notice and Takedown" Rules,in view of the gradual expansion of the application trend and value compliance of it,and based on the practical needs of the development of China’s e-commerce industry and the inevitable requirements of judicial practice,the application of it in the patent field is the general trend.By interpreting the typical judicial cases of the application of the "Notice and Takedown" Rules in China’s patent field,it can be found that there are still three urgent problems to be solved: the difficulty of regulating the abuse of "Notice" and "Declaration" rules,the unclear rights and obligations of e-commerce platform operators,and the lack of right remedy of the merchants in the platform.Therefore,it is essential to improve the relevant system design of "Notice and Takedown" Rules in the patent field,in order to achieve the optimal balance between the legitimate rights of the notifier,the operators of the e-commerce platform and the merchants in the platform,along with the social public interests.To improve the application of the "Notice and Takedown" Rules in patent infringement disputes in China’s e-commerce field,we should focus on solving the above problems.Firstly,to regulate the abuse of "Notice" and "Declaration" rules effectively.It is urgent to increase the standards of "Qualified Notice" and ensure that the compensation liability covers the loss to reasonably restrain the notifier’s tendency to issue "Notice".Similarly,it is also necessary to increase the standards of "Qualified Declaration" and clearly stipulate the tort liability of "Abuse of Declaration" to restrict the merchants who tend to issue "Declaration".Secondly,to clarify the rights and obligations of e-commerce platform operators.Considering the particularity of patent infringement judgment,the e-commerce platform operators should be given the right of preliminary examination.Meanwhile,the duty of reasonable care and examination should be distinguished to regulate the negative behavior that tends to take direct measures,and then build a relatively complete accountability system.Thirdly,to strengthen the rights relief of merchants in the platform.We need to expand the scope of "Necessary Measures" taken by platforms to specify non-taken measures,and should set up "Counter Guarantee" system,credit system and other relief supporting measures for them.