a, not known to the public (secrecy)
Secretness, which is the core feature of trade secrets, but also the identification of trade secrets is difficult and the focus of the controversy. The law stipulates that "not publicly known" refers to the secrecy of trade secrets, refers to the right to claim the trade secret does not enter the "public domain", not "public information" or "public knowledge technology". "Publicly known technology". Secrecy is a trade secret and patented technology, public knowledge technology is different from the most significant features, but also trade secrets to maintain its economic value and legal protection of the prerequisites. A public knowledge, can easily obtain the information, can not enjoy the advantage, the law also need not give protection; A secret has been made public, the owner will lose the advantage in the competition, the same will no longer need legal protection.
For the specific case of "not known to the public" how to understand and apply, the state administration for industry and commerce "on the prohibition of infringement of trade secrets of a number of provisions" (hereinafter referred to as "a number of provisions"), article 2, paragraph 2, pointed out that: "the provisions of the so-called public not known, means that the information is not available from the public, the information is not available from the public, the information is not available from the public. The term "not known to the public" as used in this provision means that the information cannot be obtained directly from public channels. This interpretation defines the term in literal terms and in terms of negative access to information, and does not reveal its connotations in a positive way. "Not known to the public" is a requirement for the content of trade secrets, mainly requiring that the information as a trade secret should be novel, but the requirement for such novelty is lower, as long as there is a minimum difference or novelty with the information known to the public. "can not be obtained directly from the public channel" is the source of trade secrets, the following "public" and "public channel" to define:
(a) the public's Relative
First, the "public" of the relative
The public in the subject of the relative and China's "anti-unfair competition law" legislative purpose coincides with the anti-unfair competition law regulates the competitive behavior between competitors. Therefore, the relative "public" of the trade secret is not a general reference to the majority of people in the society, but refers to the competitors in the field of information application, that is, the competitors in the same industry.
A piece of information constitutes a trade secret does not mean that no one knows except the legal holder. Rather, it means that the information is not known to the public in the industry or field. Specifically, the public refers to competitors in the same industry, and non-competitors such as ordinary citizens and organizations are excluded. Even competitors refer only to enterprises, scientific research institutions or individuals in the same industry or field who are able to obtain economic benefits from the information. However, scientific and technological personnel, production personnel, sales personnel and management personnel engaged in technology development and business management activities related to the information are aware of the information without prejudice to its secrecy.
Second, the public in the geographical scope of the relative
As China's vast territory, different regions of economic and cultural, scientific and technological development is very unbalanced, some of the technology in the coastal areas and economically developed areas have long been popularized and applied to become a public technology, while in some remote areas and economically underdeveloped regions may be little-known, belonging to the advanced technology. Compared with foreign countries, there is a big gap between China and the world's advanced countries in science and technology. Certain technologies that are about to be phased out abroad may be regarded as advanced technologies and secretive after being introduced by Chinese enterprises. Therefore, the territorial scope of secrecy does not have a definite spatial criterion like the novelty of a patented invention, but varies according to the nature of the subject with conflicting interests involved in the case. For example, when two multinational corporations are involved in a competitive relationship, the relevant public worldwide should be considered. If it is a competitive relationship between two enterprises in one country, the public in that country should be taken into account.
(ii) the relative nature of the secret
But trade secrets as a kind of intellectual property rights in a secret state, can not be a hard, absolute standard to measure its secret, therefore, our understanding of its secret is relative rather than absolute. This relative nature is embodied in the following four cases, in other words, in the following four cases, although formally, the information is known to others than the right holder, but it does not deny that the information is a trade secret, the infringing party as a non-criminal defense, can not be established. These four cases are:
One, independent multiple inventions. Because of the special nature of trade secrets, there will be the right holder and others think they are the only right holder of the trade secrets, or horizontal relationship between each other **** with the confidentiality measures, this situation is usually called "independent multiple invention".
The second, reverse engineering. According to the trade secret right holder into the market products, some people through their own research to discover the product's trade secrets, and the same as the secret management, that is, "reverse engineering".
Third, the use and management of trade secrets, a certain limit of disclosure. In the use and management of trade secrets, a certain limit of public is unavoidable, such as a manufacturer in the use of a trade secret, it is inevitable that some of the employees in the factory close to grasp the secret.
Fourth, for other industries, professional fields know. Trade secret secret is in the same level of knowledge, the same professional and technical knowledge in the field, because a kind of business information or technical information, may be for a layman, there is no significance, and will not use it to achieve some kind of benefit purpose. For example, a publisher's customer list, which is a treasure to a competitor, may be worthless and meaningless to someone who is not in the industry. Another example is a Soviet military alloy material contains very important technical information, with its scraps made of a civilian hooks in the civilian field, but never realized the confidentiality of the information, and later for the United States from which to obtain. In the above two, three, four of the situation, limited to the relevant party is not a violation of honesty and knowledge, if it is intended as a means of infringing on the trade secrets of others, is still a violation of the law.
Two, can bring economic benefits for the right holder (value)
A number of provisions of Article 2, paragraph 3 provides: "the provisions of the economic benefits for the right holder, with the utility of the information means that the information has a certain application, can bring the right holder of the actual or potential economic benefits or competitive advantages. " This explanation reveals the essential characteristics of trade secrets. Can bring economic benefits for the right holder this refers to the value of trade secrets, is the purpose of legal protection of trade secrets. First of all, the trade secret can bring the economic benefits to the right holder is often reflected in the economic benefits brought about by the competitive advantage. Secondly, the economic benefits not only include the application of trade secrets has brought economic benefits, but also includes not applied but once applied will certainly achieve good results. The value of the trade secret includes "real or potential economic benefits or competitive advantage", not limited to the real value.
Can bring economic benefits for the right holder, this is the trade secret can be protected property interests. The pursuit of economic benefits is the right to obtain trade secrets and strive to maintain the enjoyment of trade secret rights of the intrinsic motivation. Trade secrets of the right holder in the development and research in the process of trade secrets, has a clear industrialization or commercialization goals, which is undoubtedly out of the consideration of seeking economic benefits. From the implementation of trade secrets from the utilization of results, the right to use their own mastery of technical secrets or business information to obtain an advantageous position in the market competition. For example, in technology, containing technical secrets of new products, new materials, new technology in the same kind of products with stable performance, quality and reliable characteristics, or can reduce product costs, saving raw materials; in business, business information can broaden the holding and use of commodity sales or improve the sales price of commodities; in the management, the use of trade secrets can improve labor productivity, open source and cut costs, promote the optimal combination of factors of production, and so on. Optimization of the combination of factors of production, and so on. Trade secret holders can from the above aspects to make themselves in a more favorable position in the competition, to create more profits. And legal holders other than others may be the use of such information to seek illegal benefits, the meaning of protecting trade secrets is to prohibit others from obtaining improper economic benefits from such information.
Third, practicality
Practicality refers to the objective usefulness of trade secrets, that is, through the use of trade secrets can be created for all the economic value, with a definite utility, is to realize the value of the inevitable requirements of trade secrets. A trade secret must be able to be used for the manufacture or use in order to bring economic benefits for its holder. Precisely because of the utility of trade secrets, who as long as the master of trade secrets, who will inevitably be able to use it in practice, so in the flow of talent trade secret infringement has become so easy and widespread.
Practicality conditions require technical information, business information with certainty, it should be a relatively independent and complete, specific, operable program or stage of technical results. Utility is also reflected in the trade secret must have a certain form of expression, such as a chemical formula, a process manual and drawings, manufacturing products, technical programs, management files and so on. Practicality does not require the right to the reality of the use of trade secrets, as long as the information to meet the application of the real possibility. Utility and value are closely related, utility is the basis of value, no utility can not talk about value. Therefore, although the value of trade secrets is included in the future, potential value, but the same requirements of this value is specific, according to scientific inference is expected, trade secrets must be able to apply to a certain industry, so as to produce the actual economic value, there is no utility of business and technical information, abstract concepts, principles, principles, such as can not be transformed into a specific program can be operated, can not be Called trade secrets, can not get legal protection.
Four, the confidentiality measures (confidentiality)
The confidentiality of trade secrets refers to trade secrets by the right to take certain confidentiality measures, so that the general public is not easy to obtain directly from the open channel, the element emphasizes the confidentiality of the right to the confidentiality of the behavior, rather than confidentiality of the results. The reason for this provision, because the law encourages the struggle for the right, should not protect the right to sleep. The objective existence of confidentiality makes it difficult for competitors to learn the information directly through public channels under normal circumstances.
(a) not to take confidentiality measures, trade secrets are not protected
If the right holder does not take measures to protect a piece of information, and the information to adopt the attitude of letting it be public, it means that he himself does not think it is a trade secret, or it does not ask for protection.
The Technical Service Company of the Scientific Instrument Factory of the Chinese Academy of Sciences (later renamed Beijing Keyi Cheng Technology Development Center, hereinafter referred to as the Development Center) and the Fu Wai Hospital*** worked together in the design and trial production of the A-100 ACT monitor and the accompanying test tubes, and the XJ-100 sternal saw. The Development Center obtained registration certificates and production licenses for the above two products. Zhang ×× was once the legal representative of the Development Center, and Zhang ×× later served as the legal representative of Beijing Madikel Medical Equipment Research Institute (hereinafter referred to as the Institute). The Development Center believed that the Defendant Institute, using the technical and business information it had obtained from the Plaintiff and in violation of the confidentiality system, produced medical equipment with the exact same principle and internal structure as that of the Plaintiff's products, thus infringing on the Plaintiff's Trade secrets, and thus filed a lawsuit. The court ascertained that the asset appraiser of the plaintiff did not include the technology in the "trade secrets" under the intangible assets of the plaintiff when appraising the assets of the plaintiff. In particular, in the appraisal certificate of scientific and technological achievements provided by the plaintiff, the confidentiality level of the results of the ACT monitor was determined as public in the registration table of the results appraisal certificate. Therefore, because the plaintiff could not prove the existence of their own trade secrets, the court ruled to dismiss the plaintiff's lawsuit.
(II) Provisions on Legal Tolerance of Confidentiality Measures
The judgment of secrecy should be based on the standard of reasonableness, and it is impractical to require the right holder to take foolproof confidentiality measures, i.e., to require the person who holds the information to take measures and reasonably carry them out, but not to require the measures to be foolproof. Therefore, as far as the right holder is concerned, as long as reasonable and appropriate confidentiality measures have been taken so that the trade secret will not be disclosed under lawful conditions, it should be considered as having confidentiality. The provisions of the law are also very lenient in this regard. Article 2, paragraph 4 of the Provisions stipulates: "the provisions of the right to take confidentiality measures, including the conclusion of confidentiality agreements, the establishment of confidentiality system and other reasonable measures of confidentiality", the State Administration for Industry and Commerce "on the composition of trade secrets of the reply" pointed out that: "As long as the right holder of the confidentiality requirements, the establishment of a confidentiality system and other reasonable measures of confidentiality". As long as the right holder puts forward the confidentiality requirements, the trade secret right holder's employees or with the trade secret right holder has business relations with others know or should know the existence of trade secrets, that is, the right holder has taken reasonable measures of confidentiality, employees or others on the right to bear the obligation of confidentiality," visible in the "reply" in the establishment of the confidentiality measures of the requirements of the "provisions of a number of" is more lenient. As long as the right holder put forward confidentiality requirements. Whether the right holder to take confidentiality measures as one of the elements of the determination of trade secrets, in the doctrine is quite controversial, but from the public security department to certify the crime, investigate and handle the case from the point of view, as the determination of the elements is very necessary. According to judicial practice, as long as the right holder has taken one of the following measures, that is considered to have taken confidentiality measures: (1) whether the establishment of confidentiality rules and regulations; (2) whether the confidentiality agreement with the relative or employee or put forward confidentiality requirements; (3) involved in the special field of trade secrets whether to take appropriate management or vigilance measures; (4) other to prevent leakage of confidentiality and the adoption of targeted and reasonable Confidentiality measures. In general, reasonable protection measures include:
1. The operator has established a confidentiality system, and the relevant information is clearly classified as confidential.
2. Where the operator has not established a confidentiality system, but explicitly requires that a particular piece of information be kept confidential. For example, the word "confidential" is clearly indicated on the carrier of the information.
3. The operator has established a confidentiality system, although it is not clear that the information is secret, but according to its confidentiality system, the information is confidential.
4. The operator, when disclosing or providing the information to others, has expressly requested confidentiality in the relevant contract or other document.
5. The operator cooperates with others in the development or commissioning of a new technology, and in the development contract or commissioning contract, expressly requires the confidentiality of the technology to be developed.
6. In addition, certain information can be shown to be a trade secret by its attributes, the right holder does not need to take other confidentiality measures. For example, a software developer in its development of software encryption, at the same time produced decryption software. This encryption, decryption measures naturally belong to the software developer's trade secrets, developers as long as the control of the decryption software, is equivalent to the confidentiality measures, no need to take other confidentiality measures.