Inevitable Disclosure Doctrine In Trade Secret Law

The inevitable disclosure doctrine is different from the traditional pattern of protection of trade secret, and it is the regulation gradually created by U.S.A court to protect trade secret from potential seizure. It is used to forbid the former employee who knows the pre-employer's trade secret working for the competitor's company. This doctrine breaks through the constituent elements of trade secret infringement and surpasses the requirement of the subjective intent or negligence of the infringer, while concentrates on the objective sequense of infringement. It mainly inspects the"inevitability"made by the former employee to apply and disclose the trade secret of the pre-employer.Although the disclosure doctrine has been widely applied in U.S.A after its establishment by the American courts one century ago, it has also brought huge controveries to the field of theory and judicial circle ,and the most challenging question is the effect on the employees'freedom to choose jobs brought by the application of the doctrine . In our country until recent years some scholars began to cast light on the doctrine, but achievements of research is very little. During the times of knowledge economy with rapid development of technology and the intense mobility of talents, it is very important to study the doctrine. But even the American courts which set up the doctrine, didn't abstract the concept of the disclosure doctrine and its elements of general application , and didn't make a general regulation on it either. They just make some specific explanations through some different cases from different states. Because of Lack of statute law ,different attitudes towards the doctrine of each state as well as its passive influence, the doctrine itself make it difficult to apply .Through making an analysis of the doctrine from the following five aspects and abstracting the fundamental regulation on how to apply the doctrine ,this article initially brings forward the doctrine of benefit in common to balance the protection of the employer's trade secret and the freedom of the employee to choose jobs, and on the basis of the present situation of the trade secret protection of our country it sets up the dual–protection mode to protect the pre-employer's trade secret after the employee leaving office ,and perfects the trade secret legislation of our country .The first section is to conclude and analyze the traditional trade secret protection patterns and its deficiency, and therefore extend the necessity of the existence of the inevitable disclosure doctrine . In the second section, whereas the deficiency of the traditional trade secret protection patterns, U.S.A take the lead in passing a series of cases ,such as case of PepsiCo, to establish the inevitable disclosure doctrine. And this section will ,through the linkage with the classical cases in the law of U.S.A, abstract the basic content of the inevitable disclosure doctrine and its theoretical basis.In the third section , the author is to expound the composing elements of the inevitable disclosure doctrine and its relieving patterns, especially demonstrate the different requirements for employees'different subjective intent, and therefore further regulate the doctrine.In the forth section, the author is to show us in the course of the application of the inevitable disclosure doctrine, there is a series of confusion , such as the similarities and differences between the testifying requirements of potential seizure and the inevitable disclosure doctrine, the relationships with the contract of prohibition of business strife, the conflicts with the freedom of the employees to choose jobs, and so on . And this section attempts to demonstrate this and creatively put forward the doctrine of benefit in common to balance the owner of trade secret and the interest of the employee.In the fifth section , on the basis of the analysis of the present situation of the protection of our country's trade secret, the author expounds the application of the inevitable disclosure doctrine in our country , construct the dual-protection mode to protect the employer's trade secret after the employee leaving office for the first time, and therefore perfects the trade secret legislation of our country.