Research On The Application Of "Notice And Removal" Rule In Patent Infringement Disputes Of E-Commerce Platform

The "notice and removal" rule originated from the U.S.Millennium Digital Rights Act.It aims to provide appropriate liability rules and exemption for network service providers,so as to promote the development of the Internet industry,especially the copyright industry.European Union,Japan and other countries have also introduced and used for reference in legislation.The regulation on the protection of the right of information network communication,which was issued in 2006,introduced this rule,which tends to exempt the responsibility of the platform and has been criticized for over protecting the interests of e-commerce platform.Therefore,Article 36 of the later tort liability law clarifies the liability when the platform is not deleted in time,and extends its scope of application from the copyright field to the general civil field.In 2018,the "notice and removal" rule of the e-commerce law focuses on the infringement of intellectual property rights on e-commerce platforms.The civil code issued in 2020 continues and develops this rule.In the field of patent law,the relevant departments of our country also try to introduce the rule of "notice and removal",which is stipulated in Article 63 of the revised draft of Patent Law(Draft for examination)in 2015 and Article 71 of the revised draft of Patent Law(Draft)in 2019.However,it is a pity that there are disputes and repetitions in the process of legislation.In 2020,the patent law deleted the above provisions of the draft and the draft for examination,and did not establish the rule.The reason why it has not been introduced is that there are many problems in the application of "notice and removal" rule in patent disputes,especially in the application of patent infringement disputes of e-commerce platform.As for the application of rules,due to the more complex determination of patent infringement,the application of the "notice and removal" rule may exceed the examination ability of the e-commerce platform,and thus unreasonably increase its burden,especially after the platform receives the infringement notice from the obligee,if the formal examination standard is adopted,it will lead to the abuse of the rule.At the same time,the rule of "notice and removal" leads to the imbalance of interests of the patentee,e-commerce platform,operators in the platform and other subjects.In addition,the application of the rule may also overhead the pre litigation injunction system.Further analysis found that the key reason for these problems lies in the unequal cost of notice and "removal" damage in patent infringement disputes.Therefore,whether the "notice and removal" rule is applicable to the platform is worthy of in-depth and systematic research.In the future,China should further improve the application of "notice and removal" rule in patent infringement disputes of e-commerce platform.First of all,we should further improve the effective elements of notice and declaration,and clarify the identification standard and responsibility of malicious notice and declaration.Secondly,it is necessary to further clarify the third-party obligations of e-commerce platform in patent infringement disputes.On the one hand,it is necessary to clarify the two-way and timely "notice transfer" obligation of the e-commerce platform,that is,to establish the specific implementation measures of the notice and declaration mechanism within the platform;On the other hand,considering that the e-commerce platform does not have the ability to determine patent infringement and that the transaction information of patented products on the e-commerce platform can be recorded,after receiving the infringement notice from the patentee,the e-commerce platform does not need to take "necessary measures" of off shelf type,but takes some "necessary measures" of non off shelf type,such as comprehensively recording the transaction information of patented products involved in litigation.