On The Construction Elements Of Business Secret

With the gradual development of Chinese socialist market economic system andthe coming of knowledge-based economy and information society, marketcompetition subjects are putting more and more value on the business secret, the trendof courts' accepting business secret torts cases is upward, legislation and jurisdictionof business secret in China are facing many challenges, among them how to definethe business secret is a very important question. The author is a practice judge ofintellectual property, the most frequently encountered question in dealing withbusiness secret cases is: "not known by the public", i.e. how to judge theconfidentiality of business secret;how to affirm the rationality of the confidentialmeasures taken by the obligee? The author puts forward some personal ideas andsuggestions with the reference of the legal regulations and judicial experience ofsome developed countries and some law practices in China to solve the abovementioned question. This essay is divided into five parts besides the foreword and epilogue: Part one: Comments on the construction elements of business secret and thelegislation of Chinese business secret construction elements. The author personallybelieves that business secret should at the same time have four construction elements:novelty, materiality,commercial value, confidentiality. Part two: Makes comparison and analysis between legislation on business secretin China and other countries (mainly USA) and international conventions on the basisof expatiation of the relativity of business secret. The author puts forward that thelegislative formulation of confidentiality should be "can't be easily obtained by honestmeans by competitors." discusses how to decide in judicial practice with thecomparison of cases.Part three: Makes analysis of practical practicability with law theory on thebasis of expatiation of the materiality. The author's idea is that materiality instead ofpracticability should be required for the business secret.Part four: On the basis of analysis of the content of commercial value, theauthor puts forward that the formulation of "can bring economical benefits to theobligee " should be modified as " have commercial value ".Part five: The author puts forward the rationality of confidential measures and"ration" standard in the judicial practices.