Comment On The Case Of Bosheng Company V.Xinghao Company And Other Infringement Of Utility Model Patents

The mechanical application of the "Notice-and-Takedown " Regime in patent infringement disputes in the e-commerce field has led to the frequent occurrence of error notices and malicious notices,causing greater losses to operators within the platform.In order to meet the needs of judicial practice,articles 41-45 of the E-Commerce Law refine the procedures for the "Notice-and-Takedown " Regime,and stipulate the reverse behavior preservation mechanism in the e-commerce field in the newly issued judicial interpretation,and it is imperative to accurately apply the "notice-delete" rule and the newly introduced e-commerce reverse behavior preservation system.The case of Bosheng Company v.Xinghao Company and other infringement of utility model patents is a typical case issued by the Supreme People’s Court in 2021,which involves patent infringement issues,platform operators’ responsibility for liability,and the application of the e-commerce reverse behavior preservation system.First of all,the scope of protection of patent rights should be centered on the claims,interpreted by the description and drawings,and the principle of comprehensive coverage should be adopted for the judgment of patent infringement;secondly,it is clarified that the comparison object of the prior art defense includes a combination of prior art and well-known common sense,and the comparison standard of "no substantial difference",while the comparison object that resists the application defense again adheres to the "single comparison principle",and the comparison standard adopts the "novelty standard";third,the review standard of the "notice" procedure in the "Notice-and-Takedown " Regime is "General possibility",at the same time,the platform operator should uphold the principle of prudence and reasonableness,and take necessary measures in accordance with the "proportionality principle",that is,the severity of the necessary measures should be considered based on the possibility of infringement and the amount of loss caused by the infringement to the interests of the respondent.Finally,the application of reverse conduct preservation in this case.This case is the first application of the reverse conduct preservation system after its promulgation,and this article interprets the constituent elements of "urgent circumstances" and "irreparable damage" by combining the facts of the case.In addition,in order for the system to be accurately applied,it should also be comprehensively considered from the aspects of factual basis,the possibility of the applicant winning the lawsuit,and the guarantee provided by the applicant.