Legal And Economics Research On The Determination Of The Actual Infringement Losses Of Trade Secrets In China

With the further promotion of innovation-driven development strategy,strict trade secret protection has become a consensus of all walks of life.In the legal system of trade secret protection,tort damages is one of the core contents.How to determine the actual loss of the right holder of trade secrets has always been a big problem in the theoretical and practical circles.In addition to the parties’ inability or inadequacy to provide evidence,the main reasons are the vague definition of actual loss and the inflexible calculation standard.It is urgent to clarify the scope of the determination of the actual loss of trade secret infringement,clarify the judgment standard and adopt more refined determination rules.This paper discusses the connotation and determination principle of actual loss of trade secret firstly and introduces Cournot model of actual loss of trade secret infringement.On the basis of this model,starting from two dimensions of product attributes and competition pattern,this paper breaks through existing assumptions and builds analysis models under different situations,including the model of actual loss of trade secret infringement for homogeneous products and the model of actual loss of trade secret infringement for differentiated products.In the two models,the equilibrium output and equilibrium price are discussed under the conditions of duopoly market pattern and multi-competitor market pattern,and the actual loss is calculated.Then,the judicial practice application of the trade secret infringement actual loss model is discussed,and the actual loss ratio is calculated by market share,the number of competitors and the degree of differentiation.This paper selects the typical trade secret tort damages case and carries out the empirical comparative study.Finally,based on the model analysis and empirical test results,the paper puts forward specific legislative suggestions and judicial suggestions.This paper draws the following conclusions:First,the proportion of actual loss should be taken as the key index to measure the degree of damage in trade secret infringement cases.Under the homogeneous competition assumption,the actual loss ratio depends on the market share and the number of competitors.Under the differentiation competition assumption,the actual loss ratio is also affected by thedifferentiation degree index.Secondly,the number of competitors is an important factor affecting the actual loss of the trade secret right holder.Under the condition of multiple competitors,the loss ratio of trade secret right holder is negatively correlated with the number of legitimate competitors and positively correlated with the number of trespassers.When there are other legitimate competitors in the market,the actual loss ratio decreases with the increase of the number of legitimate competitors in the case of single trespasser.In the case of single right holder,the actual loss ratio increases with the increase of the number of trespassers.Thirdly,when calculating the actual loss under the condition of differentiated competition,the index of substitution level should be defined.The index of substitution level can be understood as the ratio of commodity cross elasticity to price demand elasticity.When the substitution level is high,the proportion of actual loss borne by the right holder is high,while when the substitution level is low,the proportion of actual loss borne by the right holder is relatively low.Fourthly,the actual loss compensation is usually helpful to maximize the damage compensation of the right holder,but the precondition is under the duopoly assumption.In the case of multiple incumbents and single trespasser,the actual loss of the trade secret right holder may be less than the infringement profit of the infringing enterprise.Based on the above research conclusions,this paper further puts forward three legislative suggestions:to establish a hybrid calculation method based on multilateral competition;Clarify the applicable subject of actual loss determination;Improve the scientific and refined determination of the actual loss of trade secret infringement.This paper also puts forward four judicial suggestions:applying the actual loss model of trade secret infringement in time;Establish a system of neutral economic experts;Optimize the rules of proof;Establish a system of separate lawsuits.The main innovation of this paper is the innovative research on the existing legal economic model of trade secret tort damages in the aspects of multi-agent and differentiation,including:First,the original duopoly competition hypothesis is abandoned,other legitimate competitors and trespassers are introduced,and the multi-agent trade secret infringement loss model is constructed.The influence of the number of competitors and trespassers on the actual loss is discussed,and the actual loss determination theory of trade secret infringement is enriched from the perspective of participants.Second,this paper rejects the original assumption of product homogeneity,introduces cross elasticity to describe the differentiated market,innovatively puts forward the ratio of commodity cross elasticity and price elasticity as the alternative level index,establishes the differentiated competition model of trade secret infringement loss,and analyzes the influence of product differentiation degree on the actual infringement loss.The theory of determining actual loss of trade secret infringement is enriched from the perspective of product attributes.Third,overcoming the lack of explicit indicators in the original judicial practice,the index of "actual loss ratio" is constructed.This index has the characteristics of strong unity,which can better measure the severity of infringement damage in trade secret infringement cases under duopoly,multi-subject and differentiated conditions,and further expand the scope of application.It has a strong guiding significance to judicial practice.