The Civil Judicial Protection Of Trade Secrets

Trade secrets are nowadays playing an increasingly important role in market competition and their value is attracting more and more attention. On the other hand, trade secret torts are found in various new forms. Accurate ascertainment of trade secrets is an indispensable step in the hearing of trade secrets litigation cases and rendering civil judicial protection of trade secrets. All the information which bears the following four natures constitutes trade secrets in law and is eligible for legal protection: (l)it is confidential, (2)it is novelty, (3)the right-holder take measures to keep it confidential, and (4)it has value. Confidentiality is the fundamental nature of trade secrets; novelty and taking measures to keep confidential are the inherent requirements of confidentiality and value is the inevitable expression of confidentiality.If a person acquires, publish or utilize others' trade secrets without the permission of the right-holder, he commits a trade secret tort. Trade secret torts takes various forms in modern life; they have common aspects and differences, but in essence, they may be classified into two major categories: One is the infringement of trade secrets of the right-holder by the party who has the obligation to keep confidential the trade secrets; the other is the infringement of the trade secrets of the right-holder by the third party who has no obligation to keep confidential the trade secrets. The former means the concerned party has legal reason and means to gain access to the trade secrets of others but has the obligation to keep these secrets confidential. Once he violates the obligations by disclosing, utilizing or allowing others to utilize the trade secrets to his knowledge, his act will constitute trade secret torts; while in the latter case, the concerned party acquires or gains access to others' trade secrets by means of disclosure by non-right-holder, emphasizing the illicit aspect of actor. On the determination of the establishment of a trade secret tort case, theprinciple of "contact + similarity - reasonable source" may be applied, that is. a combination of the limited strict burden of proof for the right-holder and the limited burden of rebuttal for the defendant. By the combination of this presumption and burden of rebuttal, trade secret tort can be effectively punished and the right-holder can obtain civil remedies by judicial means so as to facilitate the protection of trade secretsWhen the trade secret right as a "quasi-real right in litigation" is infringed, the victim (the owner and lawful holder of the trade secret at the time of the infringement) may take the case to the court for judicial remedies, including the entitlement to judicial remedies under the provisions of tort laws and contract laws. Therefore, in addition to simple tort suits, the injured party may also initiate legal actions against breach of contract. When trade secrets are infringed by the party who has the obligations to keep confidential these secrets, the victim may initiate either a tortious action or a breach of contract action against the defendant. All the individuals, legal entities and other organizations who, by illicit means or failing the obligations of confidentiality, acquire, utilize or publish the same information as that of the right-holder without the permission of the right-holder may be sued, and may be liable for damage to others' trade secrets or breach of contract.As the protection of laws and regulations governing trade secrets are relatively weak in China, it is necessary to improve the judicial protection system of trade secrets so as to satisfy the requirements of trade secret protection in reality.