Patent rights are the exclusive rights enjoyed by the creator or his assignee for inventions within a certain period of time. Patent rights are granted based on the conditions and procedures stipulated in the Patent Law, after application to the National Patent Office, and after examination and approval. In my country, there are three main types of patents: inventions, utility models and designs.
In the field of cross-border e-commerce, patent infringement mainly focuses on infringement of the promise to sell, import patented products or use of their patented methods, counterfeiting patented products, etc. For example, in recent years, many sellers in Yiwu, Hangzhou, Jiangsu, Shanghai and other places have been sued by many American wedding dress companies, believing that the wedding dresses sold by the defendant Chinese sellers on the cross-border e-commerce platform infringed their design patent rights. At the same time, they applied to the court to freeze the funds in the PayPal accounts of cross-border e-commerce sellers, and these sellers will also face high patent infringement claims.
Patent risk avoidance countermeasures
In e-commerce activities, the main types of behavior involving patent infringement are “promising to sell, sell, import” patented products or using their patented methods for production and operation purposes, and “promising to sell, sell, import” products directly obtained in accordance with the patented method. Therefore, the judgment of patent infringement mainly involves two aspects: first, determine whether the subject matter belongs to the patent product; second, determine whether the patent product is a patent product that is authorized for implementation. Unlike the easy judgment of copyright and trademark infringement, patent protection lacks detailed and clear regulations like the information network dissemination right in copyright. In addition, the determination of patent ownership is a very professional issue. The third-party e-commerce platform only has the information of the product, but cannot understand the physical product. Therefore, it is difficult for the “third-party commodity and service trading platform” to make a judgment on the relevant ownership and cannot clearly define its own scope of responsibility. Therefore, patent infringement in e-commerce mainly focuses on the difficulty in determining the ownership of patents and the problem of infringement determination, and the same is true for counterfeit patents.
In addition to the common patent products that are prone to infringement and counterfeiting in e-commerce activities, infringement and counterfeiting of business method patents are more common. Although business method patents are still controversial internationally, domestic scholars have also launched heated discussions on the patentability of business methods. There are no clear provisions in Chinese law, but countries around the world, especially countries with developed e-commerce such as the United States, are vigorously promoting the protection of business methods in the form of patents. At present, in the field of cross-border e-commerce, some countries in the world do provide patent protection for business methods, but there is a lack of relevant practice in China. This lack of theory and practice may bring huge risks.