A Comparative Study On Protection System To Trade Secret In China's And America's Law

Trade secret is an important intellectual property. With the coming of knowledge economic era, the role of information of knowledge is becoming more and more important, which is manifested by the phenomena of that the economic development depends on technical and managerial information far more than before. The property value and social value of trade secret, as such kind of information, is increasing. The first chapter of this thesis is about the definition of trade secret of the Anti-unfair Competition Law of our country, i.e. the technical information and managerial information that is not generally known among the mass, may bring commercial interests to the right owner and is of practicability and has been subject to steps under the circumstances, by the person lawfully in control of the information, to keep it secret. Those conditions in that definition is just the constitutive requirements of trade secret. The trade secret right owner possesses trade secret through the lawful measures to keep it secret. That means the requirement of it is less than patent and the protection measures is more flexible. Also, the undisclosed information is specified in TRIPs. There are three doctrines on trade secret protection including good faith principle, unjust enrichment, misappropriation and unfair competition and contractual obligation. With the comparative study of the legislative system and evolution of trade secret protection system of China and American, the author points out that American established the protection system of trade secret earlier through the regulations of common law and jurisprudence. Uniform Trade Secret Law is the statute of American trade secret law and the jurisprudence and statute mainly composes the regulations on trade secret. However, China established the protection system of trade secret till 1990s of 20th by statute. The second chapter is about the comparative study on the protection system to trade secret of China and America. Regardless of the difference of the form of the concept and range about trade secret of the two countries, the protection range is extending and both includes two aspects. First, as to the range of trade secret, it exists in almost every corner of social life and may bring great interests to the right owner in some sense. The second is about the institutive requirements. The author argues that an information with what institutive requirements could be a trade secret. In America, with regard to the institutive requirements of trade secret, most of the judgments only require the institutive requirement of "secret"or "the level of secret". The Supreme Court of America argues that the requirement of novelty shall not be as strict as that of patent but to the level enough to testify to be unknown among the mass. The commercial value of trade secret shall be presented by the right owner's predominance in competition caused by the trade secret possessed compared with those having no such kind of information. The current regulations in China, drawing the certain experiences of other countries, on the definition and the four institutive requirements keeps accordance with the international practices. The regulations about the infringing act of China and America is basically in accordance. Law of the two countries forbids the application, disclosure and warranty to the third party of the information obtained through improper means. And the act of obtaining through improper means itself is illegal according to the two countries'law. There are no contents about the liability of negligent infringement of the act of obtaining trade secret in the regulations of trade secret protection of our country since the misunderstanding resulted fromthat the unfair competition act only happened in intentional infringement. With the consideration of the structure of current regulations, no regulations on negligent infringement are improper in the sense of logicality. Regarding the problems of how to regulate the obligations, concerning the protection of trade secret, of staffs employed by an enterprise and those who resigned, China and America try to avoid trade secret infringement by signing the agreement of prohibition of business strife. The Inevitable Disclosure Doctrine is an injunction remedy principle established by the courts of America to prevent the potential disclosure, which is applied to prohibit the employee working for the competitor of the pre-employer in the same professional field so as to prevent the potential embezzlement of trade secret. Due to that principle's function of preventing the disclosure of trade secret effectively when the employees change their jobs and the circulation of talents, it becomes a trade secret protection system truly reflecting and extracting the soul of law of trade secret. The remedy of the protection system of trade secret of America includes injunction, compensation for damage, attorney's fee and criminal means. The liabilities of trade secret infringement of trade secret protection system of China include civil liability, administrative liability and criminal liability. Being different from the regulations of America, in the civil procedural of trade secret infringement in China, before the judgment forbidding the infringing act, the plaintiff has no right to prohibit the defense from disclosing and applying the trade secret. What the courts can do is just to preserve the evidence depend upon the application of plaintiff but cannot issue an injunction to forbid the defense disclosing and applying the plaintiff's trade secret like what American courts do. As to the compensation, there is principle of only indemnity but not punitive compensations. The contents of the third chapter are the suggestions to the perfection oftrade secret protection system of our country. With regard to the concept, range and institutive requirements of trade secret, the author suggests clarifying its legal nature of intellectual property in the law of trade secret and that the institutive requirements of trade secret shall be information, secret and commercial value. The practicability regulated by the law of trade secret shall include not only the operators of enterprises but also the uncommercial institutions, agencies and industrial associations and those administrative sectors and the officials known the trade secret because of the need of their duty. Concerning the recognition of trade secret infringement, the author suggests perfecting the regulations on the obligations and liabilities of the third party acting in good faith. The definition of the infringement of trade secret shall be further detailed and the relevant legally-prescribed punishment shall be ascertained according to different subject and act. Also the exception clauses about the act of obtaining trade secret through independent reach and development and reverse engineering. As to the protection of trade secret in the relationship between the employers and employees, the author suggests intensifying the function of contract. Besides intensifying the construction of the right system of trade secret, the "obligation principle"shall be used in the positive prevention for trade secret infringement. The Inevitable Disclosure Doctrine shall be adopted as the remedy to potential infringement. In the aspect of the legal remedy of trade secret infringement, the system of injunction shall be established in the law of trade secret of our country in order to prevent the further extending of the infringement of trade secret. The regulations of indemnity but not punitive compensations shall be adopted to intensify the protection of the right owner and to interdict the infringement effectively. The standard of "heavy loss"shall be clarified as well. In addition,...