A Research On The Application Of The Notice And Takedown Rule In Patent Infringement

The “notice and takedown” rule originated from the “safe harbor” system in the United States Millennium Digital Copyright Act,which was applied in the copyright at first while China has expanded its application in the process of system transplantation.This article discusses the issue that if the “notice and takedown” rule can be applied in the patent field and how to apply it mainly.The controversy in the academic field about its applicability to the patent has a long history,which has also been reflected in the legislative process.The Tort Liability Law extends the application of the “notice and takedown” rule to all of the civil rights,and the patent as one of the civil rights is naturally included,but the Patent Law Amendment(Draft)stipulates that the right holders can start the “notice and takedown” procedure based on the court’s effective judgment or other materials.Although this clause cannot directly exclude the application of the rule to the patent,it will definitely cause a new round of applicability disputes.This article attempts to compare the patent with the copyright by a comparative analysis method,and analyzes the theoretical basis of applying the “notice and takedown” procedure in the patent on this basis.While responding to the objection to the application,it is concluded that there are no theoretical obstacles to the application of the rule in the patent.Then investigating relatively uniform ruling thoughts formed in judicial practice and summarizing the more typical issues are obtained.Finally it is the analysis of the specific problems in the application of the rule from the perspective of legal hermeneutics.The full text is divided into four parts:The first part deals with the origin and transplantation of the “notice and takedown ” rule.First of all,it investigates the background and significance of the rule in the United States,secondly compares the transplantation process of the rule in Europe,Japan and China,and concludes that only China has expanded its application to the patent.Then it raises the question of whether the rule can be specifically and explicitly transplanted into the patent law.The second part analyzes the necessity and feasibility of applying the rule to the patent law.The application of the “notice and takedown” rule in the patent is a practical need.Through the comparison of patent rights and copyrights,it is found that two factors that prevent the rule from being applied to patent are the restriction of information dissemination and the lack of judgment ability of network service providers tort.There is room for applying the rule from the property rights of patent.Denying its application will cause an unreasonable reduction in the degree of protection of patent,and from the perspective of law and economics,its application should be affirmed.At the same time,it is considered that this rule only applies to information dissemination has the suspicion of result-oriented.On the one hand,it is impossible to get support from the text of the Millennium Digital Copyright Act;on the other hand,the lack of tort judgment ability does not affect the identification of the responsibility of the Internet service provider under the premise of the introduction of the duty of care.The third part focuses on judicial practice.Although its expansion has not been applied to the patent right outside the territory,there have been cases of trademark application.Domestic judicial trials have formed a relatively stable and uniform ruling idea without specific and clear legal provisions.Then it makes an empirical study on the effectiveness of the notice,the positioning of the transfer notice and whether the third party’s advisory opinion constitutes an exemption cause.The fourth part explores the hermeneutic approach to the application the “notice and takedown” rule to patent rights.Considering the differences between patent rights and copyrights,it is difficult to directly apply the “notice and takedown” rule to the patent law.Therefore,it is necessary to expound three specific issues,namely,the requirements of effective notice,the connotation and extension of "necessary measures",the establishment of duty of care and the liability for breach of duty of care,through the way of legal interpretation.