A Study Of Infringement On Trade Secrets

According to a survey by experts, most scientific and technological corporations have the experience that their trade secrets are stolen or leaked out. However, only a small amount of corporations have appealed. It also deserves our attention that the number of civil cases that latter change into criminal cases is increasing at the rate of 100% per year. This paper attributes this fact to the following three reasons:first, the current piracy laws concerning protecting trade secrets can only be applied to a narrow range of subjects; secondly, currents laws are in lack of effective ways to protect trade secrets; thirdly, it is difficult to put current laws into practical use.This paper aims to discuss some important issues concerning infringement on trade secrets in our country with reference to the legislative and judicial practices in our country and some foreign countries, and put forward some of the writer's own views.This paper consists of three parts:introduction, main body and conclusions. In the introduction part, this paper's purpose, coverage, expected results and significance will be clarified. Four chapters form the main part. Chapter one concerns basic theories related to trade secrets; chapter two deals with the definition of infringement on trade secrets; chapter three is about the civil relief system in relation to infringement on trade secrets in foreign countries; and chapter four centers around the improvements of the civil liability system in relation to infringement on trade secrets in our country.Chapter one focuses on some fundamental theories about trade secrets, which includes the definition of this concept, components of trade secrets, rights properties of trade secrets and theories on how to protect trade secrets. Though the term of trade secrets has been accepted world wide, there is not an agreement on how to define the term. Most countries define the term by generalization, illustration or a combination of the two. However, any of the three defining ways has its own disadvantages. Therefore, this paper holds that there is no need to give a straightforward definition of the term, and a comprehensive understanding of its components should be the key. The components of trade secrets differ a lot according to laws in different countries, but with the help of the economic globalization, most countries find their way into WTO and become contracting states of TRIPs agreement. Since that agreement has set strict limits on reserved issues of clauses and all contracting states agree to the conditions of TRIPs agreement, we may safely come to the conclusion that there is a tendency that all countries are getting a unified notion of the components of trade secrets. According to the subparagraph 2 of Article 39 in TRIPs agreement, components of trade secrets consist of confidentiality, valuableness and manageability. These three parts are basic components included in laws of different countries. As a special intellectual property right, trade secret has its own unique rights properties. As a legal right, it is restrictive but not exclusive. Theories concerning protecting trade secrets mainly include contract theories, piracy theories on the breach of confidentiality, theories against improper competition, property rights theories and special laws to protect trade secrets. This paper tries to discuss about the background and disadvantages of each theory.Chapter two aims to define infringement on trade secrets. Through defining piracy, this paper will analyze the definition and components of infringement on trade secrets. Moreover, with reference to the legislative and judicial practices in foreign countries, the writer holds that whether the agent has subjective faults should not be regarded as a component of piracy on trade secrets. A subject in possession of the subjective characteristics of infringement on trade secrets, who has infringed upon the legal rights of the obligee of the trade secrets and has interfered with fair competition and economic order in society through conducting infringement on trade secrets forbidden by the law, though not faulty subjectively, should also be regarded as conducting infringement on trade secrets. Therefore, the acts of a bona third party also fall into the category of infringement on trade secrets, and the principle of no-fault liability should be applied here. This paper tries to divide piracy on trade secrets into the following four categories according the different forms the piracy acts take:(1) obtaining trade secrets through unjust means; (2) revealing and using trade secrets illegally; (3) obtaining trade secrets with malice by the third party; (4) obtaining, using and revealing trade secrets in good faith by the third party. Discussions about the four categories will be made respectively. The writer will also reflect on the components of piracy on trade secrets together with the common forms it takes. It has been agreed that in view of the legislative and judicial practices in our country, the presumptive system can be applied to allocating testimony liability. With reference to this fact, together with the Article 43 in TRIPs agreement and typical cases and judicial practices at home and abroad, this paper tries to classify the rules for defining piracy on trade secrets into the following categories:(1) "Contact with the same minus legitimate source" rules; (2) "Same minus the legitimate source minus legal sources can" rules; (3) "Contact with other lawful sources can lack subtract from a legitimate source" rules. At the end of this chapter, examples of legal acts not regarded as piracy on trade secrets are also presented.In Chapter three, a comparison of civil relief system about infringement on trade secrets in different countries are conducted. The civil relief system about infringement on trade secrets in U.S. is taken as an example in this chapter:injunctions and compensations are applied in this system. More will be clarified about the coverage and term of injunctions, and whether injunctions will still be given to the infringer by the U.S. courts to ban the infringer from using related information when trade secrets have been revealed to or brought into the public. Japan's civil relief system about infringement on trade secrets serves as another example:Not as a claim, The claim for damages, Credit recovery claim, Clear claim. In this chapter, injunctions and compensations related to civil relief system about infringement on trade secrets in TRIPs agreement will be discussed as well.In Chapter four, some suggestions for the improvement of civil liability system related to infringement on trade secrets in our country will be brought forward after listing related rules and regulations and analyzing shortcomings of the current laws and regulations.