Research On The Right To Use Residual Knowledge

Residual knowledge derives from the translation of "Residual Knowledge" in the American jurisprudence.It refers to information stored in intangible forms outside the brain,other than intellectual property protection objects,which the recipient has learned by incidental acquisition,or learning deliberately but not for the purposes of subsequent use.And residual Knowledge derives from non-disclosure agreement and the relationship of the rights and obligations.Although residual knowledge is a strange concept,but the research and practice of residual knowledge has developed in our country,which use expressions such as "employee's knowledge and skills" and "personal knowledge,experience and skills".However,the word “residual knowledge ”can express it simply for the information left over from a certain legal relationship,and can be used in many legal relations,and be more rich in meaning as an indicative vocabulary.In terms of simplicity,homogeneity and ductility,it is more in line with the requirements of legal science on the concept,so this paper continues to introduce the concept of residual knowledge,and research the establishment of the right to use residual knowledge in our country.Firstly,the first chapter of this paper introduced the case of "Kelin Quota" in our country,and pointed out that the problem of residual knowledge has been widely presented in our country,and the relevant research has been carried out,but presents a more chaotic situation by the lack of a unified concept.Then from the source of residual knowledge,the details of the practice of the remaining knowledge clause in the United States,the remaining knowledge clause has been widely used in the non-disclosure agreement related to employment,consulting,mergers and acquisitions,licensing and other legal situations,and has realized the practice-justice-practice of the positive cycle development.However,considering the differences between the legal text traditions and legal systems of China and the United States,this paper holds that the remaining knowledge clause should not be directly introduced and should be adopted by means of right establishment.In order to facilitate the research on the use of residual knowledge below,this part also compares the concept of residual knowledge with the related concepts.From this paper,the definition of the concept of residual knowledge refers to the information stored in intangible form outside the intellectual property protection object in the relationship between the main rights and obligations of the recipient,which is acquired by chance or deliberately learned by the non-subsequent use purpose.The second chapter of this paper introduces the right to use the remaining knowledge from the sources of rights and the nature of the rights,and paves the way for the legal design of the rights of the latter.Among them,the sources of the right to retain the right to use knowledge include the freedom of knowledge,legitimate competitive interests and labor rights.Freedom of knowledge is the direct source of natural rights to retain the right to use knowledge,and it is also the essence.Legitimate competitive interests and labor rights are only refractive interests of knowledge freedom in the context of market competition and labor law relations,and are indicators of the state of knowledge freedom.In terms of the nature of rights,this paper holds that the right to use residual knowledge includes the right to use and benefit from residual knowledge,which is a legal right developed by natural rights and a personality right containing property interests.The third chapter of this paper describes the legal design of the residual knowledge right relatively systematically,and provides the system suggestions for the establishment of rights.The right to use residual knowledge should be stipulated in the intellectual property law system,is a natural person receiving confidential information as the subject of rights,the disclosure party as the subject of obligation and the right to remain knowledge as the object of the right,in which the remaining knowledge according to technical information and business information,positive information and negative information can be divided into knowledge skills,customer lists and negative information three categories,in the judgment of the standard of a slight difference.In order to make the right more in line with the value and purpose of the establishment,the right to retain knowledge can be restricted or expanded for a purposeful purpose.On the basis of the design of the entity law,this paper thinks that the right to use knowledge should be fully protected and relieved from the perspective of the two procedural laws of confirmation and burden of proof.The last chapter of this paper focuses on the international integration of intellectual property research,protecting trade secrets and adjusting competition restrictions.Among them,this paper argues that the right to use residual knowledge can apply to the fair use of trade secrets,and provide a new explanations of competition restrictions.From this conclusion,it is necessary to leave the right to use knowledge in our country.