On The Judicial Protection Of Trade Secrets

Trade secret is a term originated long ago,yet its relation to judicial protection was developed quite recently,as far as legal conception is concerned.Due to the elements of traditional system and legislation,the judicial protection of trade secret in China is based on a dual system,which considers administrative execution as a main method while judicial adjudication as an assistant one.However,unlike fake advertisement,there are specific victims when infringement on trade secret occurs.So the judicial protection should play a main role.Meanwhile,with the development of the judicial remedy level and the public legal awarenesses,especially after China joining WTO,more and more cases concerning trade secret may appeal to judicial protection.I have developed all intense interest in the civil adjudication of intellectual property rights even since my legal practices.Based on the theories of trade secret,together with the study of both domestic and foreign cases, I am intended to explore the aspects concerning judicial protection of trade secret in this essay.In my opinion,the people's courts in China have done a good job in protecting trade secret,but it is still far away to say the protection is satisfactory enough.Most of the problems are connected with the determination of trade secret,the burden of proof,the confidentiality of the trial,the preservation,injunctions and damages.This essay shall follow the route of civil proceedings,and discuss the determination of trade secret and their infringement, judicial procedural safeguard and substantive remedies accordingly.Part â…  shall discuss the constituent elements of trade secret and the confinement of its scope.Since trade secret is a legal term,I shall follow the domestic law and TRIPS.So the determination is based on three elements,i.e. secrecy,value and confidentiality.In addition, I shall bring about my own opinion concerning practicability and novelty.Then I shall discuss the judicial cognizance concerning technology secret and operating secret by analyzing typical cases in legal practices.Consequently,the judicial cognizance of operating secret is based on the constituent elements of information itself.Part â…¡ concentrates on the determination of the infringement on trade secret.It shall explore three actions provided in ANTI-UNFAIR COMPETITION ACT of China,and discuss three actions that eliminate their transgression.Analyzed from both sides,it shall help discriminate under different circumstances.This chapter also intends to study the actions of breach of contract and tort,and focus on the doctrine of liability fixation which regards liability for fault as a major part and liability for constructive fault as a minor one for infringement on trade secret. Part â…¢ expounds on the judicial procedural safeguard of trade secret.The legal faith that procedural rules is prior to substantive ones is well reflected in the trials concerning trade secret,yet it is not sufficient as far as the procedural provisions are concerned.Taking the particularity of the cases into consideration,I shall discuss how to fortify the system of preserving trade secret before the institution of an action.Part â…£ deals with the civil liability of infringing trade secret,thus reaches the aim of judicial protection of trade secret.Concerning the standard of damages,I shall focus on the damages of owner of the right,the illegal benefit of the tortuous part,and the legal damages.The punitive damages shall be limited only in case of intentional infringement.I believe the conclusion based on case studies bears realistic significance to the determination of damages.I venture to use the references of ceasing to infringe patent before the institution of an action in China and draw lessons from the rational factors of injunctions in other countries,to bring forward the construction about the injunctions of trade secrets in China,which should consist of pre-litigation,litigation and permanent injunctions.