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Research On Trade Secret Right

Posted on:2006-08-14Degree:MasterType:Thesis
Country:ChinaCandidate:H W WuFull Text:PDF
GTID:2166360155454063Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
As function of science and technology on the social development being more and more obvious, the protection of the trade secret of various countries is being strengthened constantly. However, by the look of legislation current situations of various countries, trade secret right has not been established yet. The academic circles are appealing to establish trade secret right. There are still many disputes about nature and theoretical foundation of trade secret right etc. This text has discussed the concept, characteristic, nature of trade secret right, theoretical foundation of trade secret right, and the composition of trade secret right emphatically. Then, the article analyses the present trade secret right lawmaking in our country. The article also proposes that our country would constitute "trade secret right law"in good time, and set up a complete and clear trade secret right protection model. In the introduction part, this text sketches the history of trade secret legal protection model and the current protection model of the trade secret. Then the thesis of this text is educed. Does the trade secret is to be protected as a kind of law benefit or a kind of right? Can the trade secret right be established, what is its theoretical foundation? What kind of right is the trade secret right? The article makes a definition of the trade secret right at first. Trade secret right means that the legal owner or holder of the trade secret gets its exclusive right in secret information, such as technological information, management information etc, in accordance with the law, by taking the reasonable security measures. Trade secret right is different from traditional intellectual property right and tangible proprietary, is a kind of special right. Its characteristics include the following five aspects mainly: First, the subject of right is parallel and common. There can be many subjects of one trade secret right. Each subject exercises their own right separately. But there are also certain relations between subjects, for example, as one subject loses the right because of public disclosure of trade secret, the right of other subjects is eliminated in the lump too. Second, the object of trade secret right is secret. As the object of trade secret right being the secret information, the content of information is secret, but the range of information can be fixed in accordance with the security measures. Third, the right is not the monopolistic, different from traditional intellectual property right's monopoly. Fourth, the trade secret is protected together by the law and obligee, and the obligee's security measures are its prerequisite of obtaining the legal protection. Fifth, the absolute elimination of right is uncertain. Trade secret right period continues until it becomes public information. The nature of trade secret right has been the focus that the academic circles are being disputed all the time. This text argues that trade secret right is a kind of civil right. It is a branch of the intellectual property. It is the reason why trade secret right cannot be included in patent right that trade secret right has diversity with traditional intellectual property. However, diversity cannot deny trade secret right's nature of the intellectual property. First, trade secret itself has property value, and in U.S.A. it is already a kind of property, and can confirm the proprietary nature of trade secret right according to the economics theory of the law. Second, the object of trade secret right is an intelligence achievement, not the materiality, and trade secret right accords with the founding purpose and protecting principle of legalsystem of the intellectual property. On the basis of defining trade secret right, chapter two of this text has discussed the theoretical foundation of establishing trade secret right. Now, the contract theory, tort theory, anti unfair competition theory, proprietary theory, differentiated gradually or together, becomes the major theories which protect trade secret, in which the contract theory, tort theory, anti unfair competition theory play positive roles in confirming trade secret right, nevertheless they are insufficient. These theories lack prevention for future infringement, or put the overweight proof burden to the obligees, or make the obligee's positive right lack the basis. Especially contract law, tort law, anti unfair competition law are not direct protection laws for the trade secret. They are different from protection domain of the trade secret law. These laws are often broken through, will also protect the trade secret which has already been public disclosed sometimes. There are many contradictions. This text argues proprietary theory has advantage over the previous four theories which is the theoretical foundation of trade secret right. First, it is based on proprietary theory. Right of claim for infringing trade secret, putting to the proof, prescription, transfer, authorizing, etc. can find the corresponding coordinate in the current legal system, and trade secret right has been existing as a kind of underhand right all the time. Second, trade secret right possesses the attribute of the proprietary because it is an exclusive right, and regard security measures as the means of public display. Third, there is no conflict between trade secret right and patent right. The object of the two rights is not totally coincident and the protected degree is inconsistent too. A certain invention, all according with the condition of the patent and trade secret right, can't obtain the protection of the two at thesame time either. The right construction is not unalterable. With the development of society, trade secret right will be established based on proprietary theory finally. Since trade secret right can be established, this text discusses the subject, object, content of trade secret right in chapter three. The subject of trade secret right is natural person, juridical person or other social organizations who holds and controls the trade secret legally. Its object is a trade secret. In most countries the key constituents of the trade secret are that the information must be secret, have independent economic value, and the holder takes reasonable security measures. But the understanding of the constituents varies from country to country. In America the recognition of trade secret is the broadest one. Secret only means information is not accessible and available to people in the profession. Trade secret is not applied in trade and will not bring competitive advantage to the holder. Hold on the whole while asserting the rationality of the security measures. When the owner has an overall security program and substantially complies with the program plan, the owner will be found sufficient security, even when particular actions do not take security into consideration. The range of the trade secret is generally limited in technological information and management information, having the tendency to expand in recent years. Trips agreement calls the trade secret as "not revealed information", making the range of trade secret more open. Trade secret right includes personal right and proprietary. Its personal right includes authorship right and secrecy right. Its proprietary include right to use, right to fructus, right of disposition. According to the study on trade secret right, this text puts forward some...
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