The Research Of Trade Secret Case

On the basis of study on Trade Secret litigation case, this article abstracts the common issues in Trade Secret litigation and analyzes them with relevant typical cases.The first chapter mainly introduces the theoretical issues of Trade Secret. This chapter expatiates on the conception, categories and the theoretical foundation for legal protection of Trade Secret. The definition of Trade Secret is not the same in different countries. But most of them consider it as a kind of information which is valuable, not known by public and taken the security measures by obligee. Trade Secret includes technology secret and operating secret. The theoretical foundation for legal protection includes contract theory, infringement theory and property rights theory. The author believes we should not only use one sort of theory mechanically but use different theories'advantages. In the times of knowledge-based economy, it is undisputed that Trade Secret is one sort of information property. We should mainly use property rights theory to protect Trade Secret, meanwhile, use contract theory and infringement theory to solve disputes flexibly.The second and third chapters mainly analyze legal issues in Trade Secret litigation. Trade Secret litigation includes three stages: the determination of Trade Secret points, the deciding of Trade Secret constitution and the deciding of Trade Secret infringement. Both the scope of Trade Secret rights and the jurisdiction are decided by Trade Secret points. The article analyzes the connotation of secret points and the way for accuser to find right secret points, while analyzing some typical cases on technology secret. In the Trade Secret constitution deciding, the essential elements of Trade Secret are secrecy, valuable, utility and precautions to prevent disclosure. From the angles of accuser, defender and judge, the article analyzes the relationship between secrecy and novelty, the connotation of relative secrecy and reasonable precautions against disclosure. Although the determination of Trade Secret points is primary stage in Trade Secret litigation, the article discusses the constitution of Trade Secret before this part because it must based on thorough comprehension of the constitution deciding.The third chapter mainly analyzes the connotation and manifestation of Trade Secret infringement, the allocation of proof burden and the common principle of infringement deciding. The author then brings forward the infringement tests in Trade Secret cases,"Infringement = Misappropriation + Substantial similarity—Lawful resources"principle. The two elements"Misappropriation"and"Substantial similarity"in the first step are effective as soon as they are in dynamic complementary relationship. In the second step"excluding lawful resources", the burden of proof will be inverted.