Research On Civil Legal Protection Of Trade Secrets

Based on the study of the Intellectual Property Rights laws of China and foreign countries, international conventions, cases, works, papers, and periodicals, and connected to the trade secrets trial practice, this thesis studies several topics on the civil protection of trade secrets in detail, especially setting forth the understanding and resolution of questions during handling the trade secrets conflicts. The whole thesis includes five chapters including the theoretic foundation of the civil protection of trade secrets, the determination of the trade secrets, the determination of the trade secrets infringement, the legal liability of the trade secrets infringements, and the limitation of the civil protection of trade secrets.The first chapter is about the theoretic foundation of the civil protection of trade secrets. It studies the definition of trade secrets, their ownerships, and the theoretic foundation of the civil protection of trade secrets. This author states that we should define the trade secrets according to the TRIPS of WTO, cancel the condition of "the Practical Utility", and should protect the experiments data given to the government by the enterprises. As to the extension of trade secrets, the thesis says it includes not only the technology information and business information, but also other information about management and experience. The thesis also thinks that we should stick to three principles of Creation, Investment, and Contract Freedom to determine the ownerships of trade secrets. The trade secrets belong to the employers when the creations'duties are to create trade secrets. Meanwhile the ownership of trade secrets is allowed to negotiate between the employers and employees. The employers should pay extra salaries to the creators and rewarded them. If the employers ask others to create, the ownership is also allowed to negotiate. If not, they belong to the creator. The author also thinks that the trade secrets should be regarded as the intangible assets. Moreover, the thesis states that the trade secret law should set up the value of stimulating the research and creation, promoting the transmission and use of technologies, and maintain the competition order of fair and trust. Based on these theories, the author sets forth the suggestion that it is necessary to lay down a special trade secrets law to protect the secrets.The second chapter is about the criteria to determinate the trade secrets. Apart from Confidentiality, Value Characteristic, and Ways of Maintaining the Confidentiality, Novelty is also the criteria to determine the trade secrets. The requirement of Novelty is the creativity. To judge Confidentiality, Value Characteristic, and Novelty, the information is required to differ from other public information, be obtained difficultly, and that the owner has spent a lot of labor to create it. It is difficult for the rights holder to provide the evidences to determine the fact of being "Unknown to the Public" because it is the negative fact. Therefore, the prove criteria can be lowered down. The trade secrets show the territoriality. So, the information is known to the public in one nations or area while it is the secret in other nations or areas only if it meets the criteria of trade secrets. Two contents of the Ways of Maintaining the Confidentiality are the wills of keeping the secret and the measures of keeping the secret. It is required that the measures are reasonable and high cost is not the requirement. When the measures are known to someone, they are reasonable.The third chapter is about the determination of trade secrets infringements. There are four behaviors of trade secrets infringements, such as obtaining trade secrets by unjust ways, unjust disclosing or using trade secrets, violating the obligation or requirement of preserving confidential to disclose or use trade secrets, the third part obtaining, disclosing or using trade secrets because of the fault. The author thinks that it is the behavior of obtaining trade secrets by unjust ways if the infringer violates good faith and the commercial morals known to the public. The definition of using trade secrets is not only about the use itself but also the information mainly from others'trade secret. The author also says that the obligations of keeping the confidential include the ostensive ones and implied ones. Contract liabilities and infringement liabilities happen together while these obligations are violated. Sometimes it happens that the creditor's rights are infringed. When the third part obtains, discloses or uses trade secrets because of the fault, he should take the liabilities together with the part violating the obligation of keeping confidential. The subjective fault is the condition of determination of trade secrets infringements, which is different from the other IPR infringement. Moreover, the author sets forth the rule of obtaining trade secrets in good faith after studying the rules and regulations of obtaining the property. Meanwhile, in order to deal with the difficulties of providing evidences, the thesis analyzes two presumption ways to determinate trade secrets infringements including "Contacting+Similarity-Legal Origin" and "Similarity (coming from the plaintiff with maximum probability)-Legal Origin", and finally thinks we should not use the rules of inevitably disclosing trade secrets of America. It is necessary to balance the interests among the holder of the customer lists, the employee, and the new employer. The customer list can be regarded as trade secrets when it is specified, difficult to obtain, and is the result of investing time, money, and labor by employer. Finally, when the customer make deals with the employee or his new employer because of the customer's willing selection, the employee doesn't infringe the ex-employer's trade secrets.The fourth chapter is about legal liability as the result of trade secrets infringements. The liabilities taken by the trade secret infringer is the same as the ones taken by the common property infringer. When the infringement happens, the victim can apply the injunction after four conditions are met. The four conditions include winning the future litigation probably, suffering the damage difficult to be compensated, guarantee, and not damaging the public interests. The author also thinks that stopping infringement should be in the limited time and positions. The time is the one that the defendant creates the trade secrets. However, on some occasions, this liability, instead of license fees, can not be implemented because of the public interests. The principals of determining the compensation amount are Compensatory with Punishment, Creativity, and Portion. Finally, just like the ways of patent infringement compensation, there are four compensation ways to exterminating the compensation amount including the damage of the rights holder, the profits of the infringer, license fees, and the Statutory Compensation. The author also thinks that punitive compensation is also applied in Chinese judicial practice.The fifth chapter is about the limitation of the civil protection of trade secrets. The thesis studies the limitation circumstances of the Reversing Engineering, public interests, national interests, surviving rights of labors, rights of the litigation. During the study, the author thinks that proper restraint should be given to the agreement about prohibiting operating competition and the employees can use their remainder knowledge. The parties should provide the evidences related to trade secrets to be inquired in the hearing and the court should take measures to preserve the confidential of theirs.