The Comparison Between The Patent Law And The Trade Secret Law On Protecting Technical Invention

The protection about the technical invention is the important and difficult question in the field of intellectual property. There are tow methods to protect the technical invention: patent law and trade secret law .To get the all-side protection, the legal master should make a choice between patent and trade secret. The same important is the rationality of the institutional setting. The existence of the system is the precondition of the choice. Only the reasonable system setting could achieve the all-side protection to the technical invention. This is the principle which author insisted on during the thesis composing.The thesis consists of there chapters. Based on the comparison of the basic theory of two systems chapter 1 includes analysis of justice of right, comparison of essential parts of right and range of right protecting. The justice of right is the real worth of the existence of the two systems. Whether the technical invention could be protected, essential parts of right are the first premises. The range of right protecting ensures protecting range and extent of realizable protecting provided by two systems for technical invention. The comparative research of these three questions provides warrant for legal owner of technical invention to select between the two systems.Chapter 2 mainly talks about the sameness and difference between judging of tortuous behavior and redress from the view that right is infringed. The ultimate reason to protect technical invention is that right will always be infringed. The writer more words to discuss how to judge right is infringed and different criterions of judgment. But because how to judge the legal right of patent or trade secret is infringed has been fiercely debated by scholars for a long time, it is difficult to give a clear conclusion for many questions. The writer mainly gives her opinion based on the comparison of various points of view. The main reason to do in this way is that whether technical invention can be protected due to judging criterion in the end. It also decides the choice of the legal owner of patent to protect his/her right. In order to provide more the limit of right—the behavior that is not regard as infringing upon legal right of patent is also discussed in this chapter. Chapter 3 is about the choice of the protective methods to the technical invention in different process. In this chapter, author set an flow chat to express all potential instance that would appear, from an invention of technology being created to it create the value. And then, draw a reasonable conclusion for the choice between the patent and trade secret. The second provides advice for legislation of protecting of technical invention in China. Although China has already a specific Patent Act, Patent Act has many unreasonable items. Especially the legislation on commercial secret is too cursory to use and mainly included in different acts. All of these bring obstacle to protecting technical invention. And all the rules which we have collected are not enough and too general to give the invention of technology all-side protection. All these make existing rules of law are more difficult to protect the invention of the technology. But lawmaking of the whole institute is a huge project, author would discuss several important question in this project. And author have discussed some questions and advanced self-advices in first, second and third chapter, so in this chapter, there has only four advices.Sum in a word,it is different to discuss all aspects of protecting technical invention. The thesis mainly talks about several aspects of two systems. The aim is try to clarify the real meaning of two systems and provide valuable analysis and advice for Chinese legislation on protecting technical invention.