Research On Liability For Indirect Infringement In Patent Of Operators Of Electronic Commerce Platform

In the field of patent rights,when others use the e-commerce platform to commit patent infringement,due to the professionalism and complexity of patent infringement determination itself,as well as the particularity of the network environment,The application of the "Notice and take down procedure" applicable in the field of network copyright to the field of patent infringement in e-commerce is of an advanced international nature,and the mechanical use of this rule will raise many problems.It is difficult to effectively crack down on patent infringement and counterfeiting in the field of e-commerce,on the contrary,it may aggravate the burden of operators of e-commerce platform,lead to the imbalance of interests and hinder the development of It is suggested that under the guidance of the spirit of balancing interests,the "communication" should be further improved."notice and take down procedure" and establish appropriate standards of duty of care.Specifically,on the one hand,we can draw lessons from the "notification-notification" system in Canada,the platform operators only assume the notification obligation,after receiving the simple notice of the right holder is responsible for notifying the operator within the platform,but not responsible for deleting the link;At the same time,a specialized official review body shall be established,if the right holder first submits a notice to that body,which considers that there is a greater risk of infringement,and then it notifies the platform operator,At this time,platform operators need to notify businesses at the same time delete or block the platform operator’s links.In terms of the burden of duty of care,the two cases are also different.One has to bear a lower duty of care,and the latter,after being explicitly notified by the review body,is required to undertake an adequate level of duty of care.In addition,in the application of "notice and take down procedure" at the same time,we need to improve the supporting mechanism,prescribing the procedures for dealing with notice of infringement of defects;The rule of"counter-notification-restoration" is introduced,and it is not necessary to enter the mechanism when the right holder directly notifies.If the notice is received from the review body,the content and effect of the notice of infringement and counter-notice should be determined and applied.