The Problems And Countermeasures Of The Factual Presumption’s Application In Intellectual Property Cases That Cognizance The Tort Subject

In the judicial trial of intellectual property rights,the alleged infringer is often against the alleged tort products with their own relevance,or accused of tort products is not counterfeit products to defend,at the same time,this is also a foundational issue in many intellectual property judicial trials.So this leads to a key issue,when the behavior which the allegedly infringing products be direct sale is identified,but for the direct manufacturer(producer)is uncertain.It will be discussed how to determine the subject of infringement in this article,in other words,the problems and Countermeasures of the factual presumption’s application in intellectual property cases that cognizance the tort subject.This paper first analyzes the predicament of cognizance intellectual property tort subject,use the case of "COFCO" to draw the dilemma of account the tort subject;then,reflecting the precondition for the presumption of tort subject of intellectual property cases by analyzing the particularity of intellectual property litigation.but the court get in the dilemma situation in factual presumption,presumption or presumption may have an adverse impact on the both parties.Analysis the reality predicament of factual presumption,through the trial presumption form of specific case to study court is how to use the factual presumption;then untangle or typed tort subject information in these cases to sort out court’s measure standards of recognized tort subject.Then,it prove establishing the unified standard’s urgency of factual presumption through using factual presumption bring the following effects on the parties like the cost of litigation,the impact of reputation,to assume substantive responsibility,etc.Finally,puts forward some countermeasures for the determination of the tort subject in the intellectual property case by the factual presumption is perfect in legislation,the applicable rules in judicial practice and the applicable conditions for the determination of the tort subject,these suggestions are in order to unify the standard of adjudication,regulate judge’s discretion on case,and prevent the abuse of factual presumption.