Study On The Standard For Act Preservation Of Trade Secrets Before Litigation

After joining WTO, people can apply to a court before prosecution for an orderto stop infringement according to the Copyright Law, Trademark Law and Patent Law,and the related judicial interpretations provide concrete elements of the remediesbefore litigation, which is of great significance Strengthen the protection ofintellectual property. Our country has not yet establish a unified trade secretprotection law and the protection of commercial secrets refers to General Principles ofthe Civil Law, Contract Law, Labor Law, Anti-unfair Competition Law and other laws,in which there are no provisions of the remedies before litigation. Because there areno provisions about act preservation before litigation in the old Code of CivilProcedure, there is no legal basis of act preservation in the protection of trade secrets,which is not conducive to effective protection of trade secrets. The new Code of CivilProcedure provides act preservation before an action of seeking legal remedy for tradesecrets holder, which has provided a legal basis and is of importance for protection oftrade secrets. But the provisions of the Code of Civil Procedure is absent ofoperability and relevant judicial interpretations have no rules. As the growth ofawareness to protect trade secrets of enterprises, there will be more cases that ask forart preservations before litigation. So it is important to establish the reviewedelements and standards of act preservation before litigation as soon as possible. Forthis reason, the author studies the standards for act preservation of trade secrets before litigation.This thesis consists of three chapters:The first part briefly introduces the concept and properties of act preservationbefore an action and compares the relevant stipulations of the patent law, trademarklaw, which also describes the first case that apply for act preservation in the tradesecrets infringement litigation after the implementation of the new Code of CivilProcedure.The second part introduces the reviewed elements and standards of thetemporary restraining order of the United States and the interim injunctions of Britainand so on. This part also put forward the enlightenment to our country legislation andjudicial practice, which should improve the reviewed elements of act preservationbefore an action as soon as possible in the Code of Civil Procedure and strengthenresearch on the specific standard in the field of trade secrets.The third part discusses the principles of act preservation before litigation in thetrade secrets field, including the principle of urgent circumstances, prudence,balancing of interests and guarantee; and applicable standards, including the probableright to relief, irreparable harms, the balance of interests between the parties, themanner and account of guarantee and public interests; also scope and duration of actpreservation.