Object Form And Proof Standard Of Technical Secret

In China’s judicial practice,it is impossible to protect the legitimate rights and interests of operators,combat and prevent the infringement of technological secrets from the starting point of technological information circulation,fair competition and maintaining market order.The cause of this judicial dilemma is that the object form of technical secrets is not clear.First of all,judges themselves have difficulties in understanding the object form of technical secrets.They are not clear about the difference between technical schemes and technical characteristics,let alone guide the plaintiff to fix the object of technical secrets in the trial.Secondly,because the object form of technical secrets is not clear,the first step of tort determination can not be carried out reasonably.That is,the technical secrets of the plaintiff and the defendant are the same(similar)and difficult to compare.Some judges compare the technical characteristics with the technical characteristics.Some judges compare the technical schemes with the technical schemes,and there is almost no same standard.Often,they will be the same.The cases were judged differently.Finally,the "secrecy" in the formal requirements of technical secrets has dual attributes.First,it is a secret to the public and second,it is a secret to the defendant.In other words,the scope of protection of technical secrets is ambiguous,which needs to be determined in litigation.When proving evidence,the two announcements often submit corresponding evidence in a general way,confusing the carrier and the object,and confusing the technical secrets with the known technology.Confusion,how to determine the standard of proof for the two accusers and judges become elusive.One of the ways to solve this problem is to identify and delimit the content and boundary of technical secrets,to make an analogy between technical secrets and practical new-type and invention patents,and to classify the objects of technical secrets into necessary technical schemes,i.e.the necessary combination of technical features to solve technical problems and achieve technical effects,which is a technological scheme with the smallest scope of secrecy.Technical secrets should be specific technical solutions,not abstract principles and technical characteristics that can not solve problems.Because the metaphysical concept and a technical feature in the scheme can not be directly translated into competitive advantage and economic benefits,there is no need to protect.In addressing the evidence,the judge should first ask the plaintiff to consider the technical field,the technical problems solved and the technical effects,and to determine the scope of protection of technical secrets in the form of patent specifications or claims,and present a written certificate to the court.Only in this way can technical secrets be compared reasonably with existing technologies,and technical secrets can be compared with the technical letters of the defendant.Only by identifying the same(similar)nature of information,can there be a proper standard of proof for technical secrets.Of course,this standard of proof is not static,but dynamic according to the case,for example,some technical secrets are complex and high-tech,so the standard of proof for the plaintiff can be reduced appropriately,otherwise the plaintiff’s standard of proof will be improved,which needs the judge to grasp reasonably.