A Comparative Study On The Legal Protection Of Trade Secret Between The United States And China

Entering into the information age, it is almost unnecessary to repeat that as one ofthe most important intangible assets, trade secrets are of great value. In recent years,cases of infringement upon trade secrets take place frequently both at home andabroad. Developed countries are striving to improve their protection over trade secretsin order to consolidate their competitive advantages, while developing countries areblazing their ways forward through difficulties to protect their independent tradesecrets.As far as overall social interests are concerned, analysis on issues concerningtrade secrets will heal the shattered relations between employers and their employeesas well as relations between enterprises and their rivals due to trade secrets.Meanwhile, the analysis is also favorable towards regulating non-competitionagreements that have been flourishing for a long time, harmonizing employmentrelations and providing the society with reasonable mechanism of talent appointmentand the public with free choice of profession. Therefore, it is the first imperative ofour government to promulgate an exclusive law on trade secrets that balances interestsof different parties. We should also study the excellence of western systems activelyand take the best of them in order to repair the loophole and make up for the shortageof legal protection over trade secrets in China currently.As a result, this paper mainly adopts a research method combining theory andcomparative analysis. Firstly, it clarifies the reason for and the form of legislation ontrade secret protection and specifies several problems existing currently in China’slegal protection over trade secrets based on the analysis of legislation development oftrade secrets in both China and USA and their current situation respectively. Secondly,starting from the meaning and elements of trade secrets, it points out the differentopinions that China and USA hold towards setting standards for elements of tradesecrets through comparison of legal values under the element theory. After that, thispaper focuses on an analysis of the relationship between non-competition and tradesecret protection, conducts a discussion on the contradiction between “non-competition” and “employees’ free choice of profession”, and introduces“inevitable disclosure doctrine” of USA at the end to put forward suggestions for thedesign of our system on trade secrets. Besides, the establishment of public interestdefense rules in USA provides a basis for legal problems concerning the public intrade secret protection which is worthy learning. At last, this paper puts forwardseveral suggestions for legislators’ reference in order to improve China’s system oftrade secret protection.