On the Coordination and Application of Notification Removal Rule and Pre-lawsuit Behavior Preservation—From the Perspective ofPatent Infringement Involving E-commerce Platform
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摘要: 通知移除规则适用于专利领域已逐渐形成共识,合理使用该规则不仅能起到纠纷解决的分流作用,而且该规则的适用申请具有便捷性的特点,无需通知人提供担保。但该规则的适用存在利益失衡的问题,诉前行为保全与通知移除规则在规范目的、启动要件、法律效果等方面具有共性,其特有的优势可以补正通知移除规则的劣势。实践中存在的问题为优化两种措施提供了方向:通知移除规则的适用应提高侵权的初步证明材料要求,电商平台审查义务不宜设定过高。调整法官恰当认定诉前行为保全的标准,诉前行为保全申请不必全都要求提供担保,同时建立并完善法院与电商平台的对接机制。Abstract: It has gradually formed a consensus that the notification removal rule is applicable to the patent field. Reasonable use of the rule can not only play a diversion role in dispute resolution but also the application of the rule is convenient and does not require the notifier to provide guarantee. However, the application of this rule has the problem of imbalance of interests. The pre-lawsuit behavior preservation and notification removal rule have similarities in terms of regulatory purpose, initiation requirements, and legal effects. The unique advantages of pre-lawsuit behavior preservation can supplement the disadvantages of notification removal rule. According to the specific situation to choose appropriate measures to resolve disputes is more conductive to timely relief. The existing problems in practice provide directions for optimizing the two measures:the application of notification removal rule should improve the requirements for preliminary evidence of infringement, and the review obligation of e-commerce platform should not be set too high. Adjust the criteria for judges to appropriately determine pre-lawsuit behavior preservation. It is not necessary to require all applicant for pre-lawsuit behavior preservation to provide guarantee. At the same time, establish and improve the docking mechanism between the court and the e-commerce platform.
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