Study And Borrow Ideas From Calculation Methods Of US Trade Secret Infringement Damages

This paper aims to solve the following problems: Among the calculation methodsof US trade secret infringement damages, the followings are the three leading methods:A. with the actual loss of the right owner as the standard, B. with the infringer byinterests as the standard and, C. with reasonable licensing fees for the standard. Whatdo they respectively mean? How to apply for them? And what are the keyconsiderations during the application?US trade secret legislation and judicial practice have a long history, tend to mature,and is worth being referenced by China. To begin with the existing problems of thethree basic calculation methods of Chinese Trade Secret infringment damages, theauthor studies the legislation, judicial practice and, especially, the meaning, applicationand considerations of those three US methods. Then the author discusses theenlightenment of the US to China and puts forward the some improvementsuggestions.Part One shows the main existing problems of the three calculation methods ofChinese Trade Secret infringement damages by several cases, mainly including thosethree questions mentioned on the first paragraph. From Chinese present situation,there are two questions which are the lack of comprehensive legislation and manydisputes in judicial practice. Based on Part, the author continues researching relavantUS legislation and the judicial practice. Because there is an optimal order of the three basic calculation methods, so PartTwo, Part Three and Part Four are in accordance with the optimal order.Part Two indicates the meaning, application and considerations of the firstmethod and then analyzes the "catch all" principle and "overlap application" ruleswhich reflecting its advantage, that is, compensating the right owner comprehensively.The most important consideration is causal nexus. In summary, the author thinks thatthe method is an ideal method but for the difficulties in proving causal nexus betweenthe plaintiff’s actual loss and the defendant’s misappropriation of the trade secret.Part Three is the key part of this paper. Because from judicial practice,comparatively speaking, the second method is the best solution. In order to maximumthe range to compensate for the plaintiff, during the application, this method can becombined with the method mentioned in the last paragraph. Or choose a greater onebetween those two. Of course, no repeated calculation is the premise of such operation.And the studies on "Aportionment" and "the standard of comparison test" have laidsolid foundation for the contents below.Part Four presents the meaning, application and considerations of the thirdmethod. Generally speaking, this method cannot be applied only if the above twokinds of methods are not proper. The author does not describes much about thismethod since there are too many uncertain factors and it is difficult to grasp the scaleof "reasonable".Finally, after the introduction and analysis of a series of relevant legislation andcases, the focus once again returns to China. In Part Five, the author briefly putforward four pieces of advice and several suggestions on proving Chinese relevantlegislation or judicial practice.