Research On Judicial Determination Of Reasonable Measures To Maintain Trade Secrecy In China

In today’s innovation-driven information economy era,as the carrier of technical information and management information,trade secrets play an increasingly important role in market competition and become the commanding heights of enterprise competition.However,there are always some enterprises delusional,trying to steal others’ innovation results,resulting in frequent infringement of trade secrets in society.In order to protect the innovation enthusiasm of enterprises and restrain the market unfair competition,many countries begin to give legal protection to trade secrets.As for the theoretical basis of trade secret protection,the mainstream view is that trade secret is a kind of intellectual property right,and the protection of trade secret can stimulate innovation and information dissemination.Intellectual property law is a balance of interests law,where the legal protection of trade secrets should fully consider the balance of interests between the creator’s exclusive right of use and the public’s free right of use.In order to balance the interests of trade secret protection,the law sets the threshold of trade secret protection.According to the law of our country,only the information with secrecy,value and confidentiality can be protected by law.However,there is no specific judgment standard for the determination of reasonable confidentiality measures,which leads to different views on judicial application and different judgment standards,which become the focus and difficulty in the trial of cases of infringement of trade secrets.Confidentiality measures play an important role in the construction and protection of trade secrets.First,confidentiality measures are the external symbol of the existence of trade secrets.The right holder expresses his intention to keep confidential by taking confidential measures and informs others that the information is his trade secret.Second,confidentiality measures are the necessary conditions to maintain the confidentiality of information and the premise and basis for the right holder to enjoy the natural interests and legal rights of trade secrets.Third,judicial recognition of reasonable confidentiality measures plays an important role in balancing interests in the process of trade secret protection.In the judicial trial,the judge can decide whether to give legal protection to the information involved through the identification of reasonable confidentiality measures.Although the countries outside the region also regard reasonable confidentiality measures as one of the legal components of trade secrets,and yet they haven’t given the specific judgment standards of reasonable confidentiality measures.It is expressed as "corresponding confidentiality measures" in the law of our country,"reasonable efforts" in the law of the United States,"reasonable steps" in the law of the EU,and "managed as a secret" in the law of Japan.Obviously,these abstract legal expressions of reasonable confidentiality measures cannot give clear guidance to judicial identification.Therefore,we need to summarize the specific recognition rules from the judicial recognition of reasonable confidentiality measures of trade secrets.This thesis selects one hundred typical cases about the determination of reasonable confidentiality measures in recent ten years in China and empirically analyzes the mainstream views and applicable difficulties of the judicial identification of reasonable confidentiality measures of trade secrets in China.Meanwhile,it summarizes the relevant judicial practice experience of the determination of reasonable confidentiality measures of trade secrets in major countries in the world based on relevant cases of the determination of reasonable confidentiality measures in the United States,Japan and other countries.In essence,to judge whether the right holder has taken reasonable confidentiality measures is to judge whether the confidentiality measures taken by the right holder can meet the functional requirements of confidentiality measures in the composition of trade secrets,and to make a final determination based on the balance of interests of all parties.Accordingly,this thesis summarizes various elements and judgment standards for the determination of reasonable confidentiality measures of trade secrets,and then puts forward the "three-step test method" for judicial determination of reasonable confidentiality measures,and analyses the specific application of the "three-step test method" combined with relevant cases and situational factors.First of all,judge whether the right holder has confidentiality intention.The trade secret law requires that the holder of trade secret treat the information as confidential at all times.The determination of confidentiality intention requires dynamic analysis of the entire confidentiality process.If the obligee has taken confidentiality measures for the information and has never publicly disclosed the information during the confidentiality process,it is determined that the obligee has confidentiality intention for the information.Secondly,judge whether the confidential information is identifiable.If the parties involved can subjectively recognize that the information is the secret of others,the confidential information shall be deemed to be identifiable.For the judgment of identifiability,if there is a confidentiality agreement,the judgment can be made in accordance with the confidentiality agreement.If the confidentiality agreement is not clear or there is no confidentiality agreement,the judgment should be made based on the comprehensive analysis of whether the confidentiality carrier has physical protection,the nature of the information involved in the case,the identity of the parties involved and other factors.Finally,determine whether information confidentiality is effectively maintained.If at that time,it can effectively prevent others from obtaining the secret by proper means,it is deemed that the right holder has effectively maintained the confidentiality of the information or the confidentiality measures have the effectiveness of confidentiality.You can perform steps to determine the effectiveness of confidentiality:(1)control access to the secret;(2)do not disseminate the secret more widely than necessary;(3)do not give access to individuals who fail to hold the information in confidence;and(4)establish,update and follow security guidelines for keeping it safe.The first three items are the basic requirements for the effectiveness of confidentiality.If the right holder has fulfilled the requirements of the first three items,We can preliminarily identify the effectiveness of confidentiality.The fourth item is the highest requirement for confidentiality effectiveness,which can be selected whether to apply according to the value of information,the nature of the carrier,the scale of the enterprise,the nature of the industry and other factors.