The Identification Of The Secrecy Of Trade Secret

Trade secret as an important part of the intellectual property receives more andmore attention from all sectors of society in the era of knowledge economy, so theestablishment of reasonable and effective trade secret protection system has becomean important part of the national legal system construction and economicdevelopment. In the protection of trade secret, judicial protection as the final meansundoubtedly attracts the most attention and shall be strengthened most. Judicialprotection of trade secret shall first judge whether the involved information belongs tothe trade secret, and the identification of whether the information is secret is theemphasis and difficulty of the above judge process.Starting from the judicial practice, the paper conducts the research on theidentification of secrecy in the judicial protection practice of our country in theperspective of the existed typical case. With the research on the idea, basis andmethod of identification of secrecy of trade secret component elements during thehearing of domestic and foreign trade secret infringement cases, the paper conductsthe analysis on the dispute over the component elements such as “related personnel inspecific field”,“common knowledge” and “easy access” in the judicial identification,then analyzes the reason of dispute, and finally puts forward the solution orsummarizes the past laws.Besides the introduction and conclusion, the paper is divided into four parts:Firstly, with the analysis on domestic and foreign disputes over the componentelements of trade secret, the paper concludes that there shall be four elements-secrecy, value, practicability and confidentiality, and that the secrecy shall only beobjective secrecy, rather than subjective secrecy. In addition, it is proved that the stateof secret shall be the relativity from the perspective of legislative intention andmarket demand. Therefore, the scope of secrecy is delimited on the whole.Secondly, the paper discusses the relativity of the “public”. Specifically, thepaper conducts the analysis on the identification of the knowing subject of information from “related personnel” and “specific field”, and draws a conclusionthat “related personnel” shall be the competitor of same industry or same field, andthe subject without market competition shall be excluded from it. Delimitation of“specific field” shall not be simply based on the “technology” involved in theinformation, but based on the characteristics of economic activities within the scopeof information, and shall take the “regional characteristics” of the information intoaccount.Then, the third part mainly analyzes the connotation of “knowing” andrequirements of judicial practice for “knowing” degree. The conclusion is that the“knowing” shall be “actual knowing” and excludes “easy knowing”. In the“knowing” degree, exact content of the information, exact content of componentelements and exact combination of component elements shall be distinguished andidentified respectively, and if any aspect fails to be known by the public, theinformation shall be identified as a secret.Finally, the paper conducts the analysis on difficulty standard of acquiring“technical information” and “management information”. The conclusion is that theminimum creativity standard shall be set for “technical information” in order to applyit to the judicial practice. For the “management information”, especially the client list,the paper summarizes the laws of acquisition difficulty of identifying different typesof client lists in the current judicial practice of our country.