The Research On The Application Of The "Notice And Takedown" Rules In Patent Infringement Of E-commerce Platform

At present,there are many disputes when the “Notice and Takedown” Rules is applied to the field of patent infringement of e-commerce platforms.It can be seen from the cases of Xu Lijun v.JD,Jiayikao v.Tianmao,Chen Xiaojun v.Desa and Taobao Unfair Competition Dispute.There are some disputes about the standard of notice,the reasonable time for operators of e-commerce platforms to take necessary measures after receiving notification,and the standard of necessary measures.In addition,some obligees abuse the “Notice and Takedown” Rules,maliciously suppress competitors and affect the normal operation of e-commerce platforms.To apply the “Notice and Takedown” Rules to identify patent infringement of ecommerce platform,we should focus on three issues: Firstly,to clarify the standard of "Qualified Notice".A qualified notice shall at least include the basic information of the informer,the basic materials to prove patent infringement and the detailed location of the commodity to be complained of.Secondly,to correctly judge whether the time of relevant actions is reasonable.The starting point of time determination should be the time when the operator of e-commerce platform receives the qualified notice.For the criterion of "timely" or not,it should be decided according to the technical ability and the specific situation of the case.It is not appropriate to formulate a rigid criterion.Thirdly,whether the e-commerce platform has taken "necessary measures" should be scientifically evaluated."Necessary measures" require that torts be stopped and the interests of all parties be balanced as far as possible.Therefore,it is suggested that the "counter-notification" procedure should be included in the necessary measures.In addition,measures such as perfecting the responsibility-taking system of false notification and establishing credit rating system should be taken to prevent the abuse of the “Notice and Takedown” Rules by the obligee.