Research On The Infringement Determination Of Trade Secrets In China

Internationally,after the intellectual property rights such as copyright,trademark right and patent right have been included in the protection of international conventions,the Agreement on Trade Related Aspects of Intellectual Property Rights under the WTO management system has specially and systematically stipulated the provisions for the protection of trade secrets(Article 39),so that trade secrets can be clearly confirmed by multilateral treaties for the first time.At the same time,many countries and international organizations continue to promote the legislative process of trade secret infringement,and regard it as a key link to improve the competitiveness of enterprises and national competitiveness.In China,with the increasingly fierce market competition,there are more and more infringement of trade secrets,and it has become a hot issue in current market competition.Therefore,it has become a very obvious mainstream trend to strengthen the research of trade secret infringement.There are many kinds of business information related to market competition.Not all of this information can be protected by law,and the trade secrets that can be protected are only a part of these information,and the basis for deciding which trade secrets to be protected is the infringement identification standard of trade secrets.On the one hand,it is necessary to make clear the standards for the determination of trade secrets,which is an important prerequisite and basis for the determination of infringement,and has important guiding significance for judicial practice.Among them,it is necessary to focus on the specific analysis of the elements of Secrecy,Value and Confidentiality.On the other hand,it is necessary to define the standards of trade secret infringement,which is the key point of the study of trade secret infringement.It is necessary to analyze the general principle of “Contacting +Substantive Same-Legal Origin”,“Substantive Same-Legal Origin” special principle and “Exceptions”.Of course,it is also the focus of this paper to clarify the applicable standards of trade secret judicial identification and the subject of trade secret infringement.On the one hand,there are still some problems in judicial practice,such as whether judicial expertise should be needed,and how to apply it when the opinions of different appraisal agencies conflict in the same case.Therefore,this article holds that the judge should try to make a reasonable analysis on the basis of the existing facts,and make a judgment on the basis of the expert conclusion only when all the methods are exhausted but the determination cannot be made.At the same time,the responsibilities and technical standards of the current trade secret judicial appraisal institutions should also be clarified and standardized.On the other hand,this article proposes to modify the scope of “operator” in the “General Provisions” of the anti-unfair competition law,so as to regulate the infringement behaviors of many people who have access to trade secrets but do not belong to the operator,and help to create a fair market competition atmosphere.In summary,this article is based on the deficiency of legislation and judicature in our country,and draws on some advanced suggestions from foreign countries for the selection and improvement of the trade secret infringement standards in order to better protect the legitimate rights and interests of the parties.