Research On Right Restriction Upon Trade-secret

With the advent of the era of knowledge economy, the importance of trade secrets inthe development of the enterprise is becoming increasingly prominent. Trade secrets hasbecome a powerful weapon to defeat the competitor in many cases.“TRIPS (Agreement onTrade-Related Aspects of Intellectual Property Rights)” which signed by World TradeOrganization，has brought the right of trade secrets up to a new height in worldwide. Andtrade secrets with copyrights, patents and trademarks constitute the important part of theintellectual property system. The system of limitation on trade secrets right is founded underthe trend of protecting trade secrets rights preferentially with legislation and judicial practicein many countries of world. And the main purpose of this system is to set reasonableboundary to the exercise of rights of trade secrets, in order to protect the rights and interests ofowner of trade secrets much better. At present, the research about right of trade secrets is stillrelatively short. The provisions to limit the right of trade secrets in current legislationdistribute scattered and lack uniformity.This essay first introduce the concept and identification of trade secrets, and thenstarting with dissecting legal attributes and legal characteristics of the right of trade secrets，analyses and demonstrates the necessity and rationality of restriction on the right of tradesecrets, according to the general principles of legal economics and balanced theory ofinterests of jurisprudence. Subsequently, through the examinations on examples of thelimitation of trade secrets rights in developed countries, such as America、England and Japan,with the method of comparative jurisprudence, this essay discusses and researches theconcrete system about the restriction on the rights of trade secrets from other’s legitimaterights，the employee’s right of choosing job at free and from social public interests. Fianlly,through the combing of current rights limitation system about the trade secrets in our country,it finds the existing problems and defects in our present legislation. By using domestic andexternal advanced legislative experience for reference, it has put forward some measures andsuggestions on how to improve restriction system on right of trade secrets: The first is that we should establish specialized “Trade Secret Protect Law”. Cooperatewith the “Anti-Unfair Competition Law”、“Labor Contract Law” and other laws, it shouldconstruct intact and scientific limitation system on the right of trade secrets.The second is to design and perfect the Concrete system from the following aspectsTo begin with, we should make it definite that there has restriction on right of tradesecrets from social public interests. In the “Trade Secret Protect Law”, the fundamentalprinciples should be explicitly state: if the behaviors of trade secrets owner conflicts with thenational laws and regulations, not conform to the content of social public morality andendanger the public interests, it would not be protected by this law. At the same time, weshould explicit define mandatory disclosure and compulsory licensing system of trade secrets.When national emergency such as war and plague appeared, for the purpose to maintainpublic interests, the competent authorities of trade secrets or judicial authority may approvethe mandatory disclosure of the trade secrets, or give the compulsory license to implementthe trade secrets, by a third party application. But the third party who is authorized to use thetrade secrets must pay reasonable economic compensation to the owner of the trade secrets.Secondly, we should make it definite that there has restriction on right of trade secretsfrom other’s legitimate rights. The future “Trade Secret Protect Law”should include thefollowing situations about limitation on right of trade secrets from other’s legitimate rights: toobtain trade secrets by self-develop; to obtain trade secrets by reverse engineering; to obtaintrade secrets by intelligence analysis or direct investigation; to obtain trade secrets bynegligence and leakage of obligee; to obtain trade secrets in good faith; to obtain tradesecrets by legal transfer or license.Finally, we should perfect the limitation on trade secrets from the the employee’s right ofchoosing job at free. By using domestic and external experience of legislation and practice forreference, this paper argue the legitimate agreement of prohibition of business strife shouldmeet the following conditions: The reasonable scope of trade secrets，that is to say thecommon working skills and operational experiences of enterprise staff to master in their dailywork can not be regulated by agreement about prohibition of business strife; The reasonableobject to limit, that is to say the object to regulate by agreement about prohibition of business strife should be special employees who master trade secrets and the enterprise maynot use agreement about prohibition of business strife to limit common employee’s right ofchoosing job at free who do not usually contact trade secrets; The reasonable area to limit,that is to say the reasonable area to restrict should generally be limited to the region where theproducts or services of the enterprise contained trade secrets have greater influence; Thereasonable economic compensation, that is to say the reasonable economic compensationgiving to employees by enterprise should rise to the mandatory provisions of the law and thelower limit for the payment of economic compensation and specific method of calculationmust be explicitly provide.