The Study Of The Litigation On Software Infringement From The Cases Of Xiamen Xinkeji In Series

Today, the infringement of software is very common, and the court has summed up much experience to deal with this kind of case. Because of the diversity of the infringement, the characteristics of software, and the limit of copyright protection, it is very difficult to protect the obligee. In the past few years, some infringements have been caused by job-hopping, which is well-known. This article is based on some cases of job-hopping from the angle of protecting software by copyright or trade secret. Through analyzing these cases, a conclusion may be achieved, which will provide a little help for judicial practice.This article is consisted of four chapters. The first chapter discusses the advantages and disadvantages of Trade Secret and Copyright for protecting software. At last, the author draws a conclusion that it is necessary to protect software by Trade Secret. The second chapter discusses some issues of the software copyright during the litigation, according to the cases of"XIAMEN XINKEJI IN SERIES". From the perspective of practice, the author discussed the protection scope of software copyright, how to assert the obligee, how to prove the infringement, and infringement deciding of the software copyright, etc. This chapter corrects the connotations of"entrapment"and"Substantial similarity"in software copyright. The third chapter analyzes some issues of the software trade secret during the litigation, in accordance with the case of"BOTODAKANG TRADE SECRET". From the perspective of practice, the author discussed the protection scope of software trade secret, how to assert the obligee, how to prove the infringement, infringement deciding of the software trade secret, etc. This chapter emphasizes the traits of trade secret"secrecy, valuable, utility and precautions to prevent disclosure"and infringement deciding"Infringement = Misappropriation + Substantial similarity-Lawful resources". The fourth chapter analyzes when to protect software with copyright and trade secret at the same time, combining the case of"SHANXI TONGSHUAI". It relates to conflict of right of claim. Now in theory, no consensus is reached .The author expounds concretely how to deal with it in judicial practice. At last the article suggests Software enterprises and developers to take measures to protect their profit effectively.This article analyzes the details of the three cases, taking different measures to obtain the biggest profit during the litigation. In practice, because the case is complex, the attorney must investigate all the proofs carefully, and the party must protect the software in appropriate methods. Only in the way can we succeed in litigation.