Research On The Duty Of Care For Design Patent Infringement Of E-commerce Platform

The duty of care for patent infringement of an e-commerce platform refers to the obligation of an e-commerce platform to not infringe the patent rights of unspecified patentees by their website operations.The "E-Commerce Law" and the "Guiding Opinions of the Supreme People’s Court on Trial of Civil Cases Involving Intellectual Property Rights of E-commerce Platforms" stipulate that e-commerce platforms shall bear corresponding legal liabilities if they fail to fulfill their duty of reasonable care.The duty of care for patent infringement of e-commerce platforms includes two situations,namely,the duty of care beforehand and the duty of care after receiving the notice.Under the current technical conditions,e-commerce platforms have the corresponding technical capabilities to intercept or delete some of the more obvious infringing goods.The e-commerce platform should take the initiative to adopt technical measures to prevent infringements from occurring,and undertake the duty of care that matches its technical capabilities.Because the scope of protection for design patents is based on pictures,with the development of "image recognition" and "artificial intelligence" technologies,e-commerce platforms should assume a clearer duty of care for design patent infringement than other types of patents.Since there are many factors that affect the duty of care for design patent infringement of e-commerce platforms,although relevant laws stipulate the duty of care for infringement of intellectual property rights of e-commerce platforms,they do not clearly stipulate the duty of care for design patent infringements of e-commerce platforms.The unclear standards of the duty of care for design patent infringement of e-commerce platforms have led to the widespread adoption of the “ostrich policy”by e-commerce platforms in practice to evade their duty of care.It also makes it difficult for the court to determine whether the e-commerce platform has fulfilled its duty of care in the trial of a design patent infringement case,and there are situations in which the “notice-delete” rule is rigidly applied.The above problems can be solved from the following two aspects:One is to clarify the duty of care standard for design patent infringement of e-commerce platforms,including the duty of care beforehand standard in general,the duty of care standard after receiving notice for e-commerce platforms,and special circumstances duty of care standards for e-commerce platforms;second is to improve the design patent infringement duty judgment standard of e-commerce platform,including clarifying the design patent infringement of e-commerce platform from the legal level duty of care,a supporting measure for constructing the duty of care for design patent infringement on e-commerce platforms.