Analysis On Trade Secrets Infringement Case Of Mr. Fang

In the era of technology-driven economy, business secret is one of the mostimportant intangible assets for enterprises. In some cases it is as important as theirlife. However, in the aspect of legislation, China’s business secret protection systemis short of independent, systematic and well-established legal system compared withdeveloped countries. Many issues are still to be completed by interpreting laws ofbusiness secret in the process of case trial. Lagging in legislation brings aboutdifficulty and uncertainty to the trial of business secret. This case involves threedisputes which are, whether the know-how information involved constitutes businesssecret (containing the confidentiality, value and security of the know-how informationinvolved), whether the defendant conducted activity that infringes on victim’sbusiness secret and whether the conduct constitutes crime. From the view of businesssecret constitution, novelty is the constituting element of a patent instead of businesssecret, practicability is the basis of value and not an independent constituting elementof business secret. For business secret, there are three constituting elements which areconfidentiality, value and security. From the angle of confidentiality, theconfidentiality of the business secret refers that the business secret is unknown to thepublic. Here the public refers to the relevant persons skilled in the field involved.Even though some know-how information falls into the category of general know-howin the field, it may not be “generally known” or “easily gained” by persons of relevantfields. From the angle of security, business secret security combines the subjectiveconsciousness and objective measures of the owner. The owner shall have thesubjective consciousness of protecting the secret information as business secret, andtake protective measures of preventing others from obtaining it legitimately and easily.As per how to determinate torts of acquisition by temptation and usage with permit,we need to fully consider the diverse ways of temptation and the result of thetemptation that the owner’s business secret flows to the tempter along with the flowof talents. Concerned with the tort failing to perform the obligation of keepingbusiness secret, disclosure and usage of business secret, how to identify whether thefeasor has the obligation of keeping secret is a premise. As long as the obligee bringsup secrecy requirements, others know or should know the existence of business secretand must undertake secrecy obligations. Concerned with the tort is guilty or not, the core rests with the cognizance of the loss. The loss not only includes direct economicloss but also includes indirect economic loss. The tort can not be determined as beingnot subjected to heavy loss because of no direct heavy economic loss occurs duringdelict. In terms of the relationships of confidentiality, worthiness and secrecy ofbusiness secret, business secret becomes confidentiality because of secrecy and bringworth because of secrecy. An enterprise should continue to have the value of businesssecret, and must take appropriate measures to the management and protection ofbusiness secret in human resources management, production management and externalcooperation and communication process.