Research On The Constitutive Elements Of "Secrecy" Of Trade Secrets

Trade secret law plays an important role in the field of intellectual property,and some scholars call it "the fourth intellectual property",and the research on the confidentiality elements of trade secret plays an important role in identifying trade secret infringement cases.From the perspective of legislation,the law should confirm the standard of confidentiality through specific provisions.At the same time,due to the complexity of trade secret dispute cases,it is not only necessary to be familiar with the relevant provisions,but also need to further identify the characteristics of confidentiality in judicial practice.This paper studies the constituent elements of confidentiality of trade secret,and puts forward that confidentiality is not only the basis and origin of trade secret,but also the key to distinguish it from other information.The value of obligee’s trade secret first lies in confidentiality.If it does not have confidentiality,it may be just a document or "idea".Does others know the trade secret,It directly determines whether this right exists or not.Just like the Coca Cola formula,the protection of trade secrets is not limited by the legal period.As long as it is secret and not known by others,it always exists,which is different from other types of intellectual property rights such as inventions.The main body of this paper is divided into three chapters:The first chapter discusses the judicial practice and problems of the confidentiality identification of trade secrets in China,which is demonstrated from three dimensions.First,the legal significance of the determination of the confidentiality of trade secrets: first,confidentiality is a necessary condition for trade secrets,and the trade secret law appears because of the protection of a certain secret.Second,confidentiality determines other constituent elements of trade secrets.Value is valuable only in the state of confidentiality,and management directly points to subjective confidentiality.Third,confidentiality is the confirmation of the reasonable boundary of trade secret rights.The critical point of confidentiality lies in novelty.Because of the function of novelty to determine the threshold of trade secret,novelty can be said to be another aspect of confidentiality.Second,the provisions of China’s new anti law on the confidentiality of trade secrets: first,the introduction of"electricity"Sub intrusion "solves the difficult problem and fuzzy boundary of summarizing the" quasi Electronic Intrusion "means into the application of other improper means.Second,the scope of confidentiality responsibility is expanded,and its essence is to emphasize the legitimacy of obtaining trade secrets.On the other hand,the burden of proof of the obligee is also relatively reduced.Third,expand the subject of infringement,and breakthrough to "regard" natural persons,legal persons and unincorporated organizations as operators,so as to bring more comprehensive protection to trade secrets.Third,the dilemma of the confidentiality identification of China’s trade secrets: first,the boundary of remaining knowledge,which is in a mixed state with trade secrets,is different in theory,but it can not be clearly distinguished in reality.Second,the identification of technical information secret points.Due to the lack of unity in the identification of trade secrets in China,different appraisers will have different identification results.Third,the criminal responsibility of trade secrets,the investigation of criminal responsibility for negligence and breach of contract,and the complexity of reverse engineering as a defense.The second chapter discusses the confidentiality of trade secrets in international treaties and extraterritorial legislation from the two dimensions of international treaties and foreign countries.First,international treaties: first,TRIPS Agreement is the most influential international treaty at the level of international treaties,which adopts three theories on the constituent elements of trade secrets.Second,the model provisions,adopted by most countries,embody the overall goal of trade secret protection.On the issue of confidentiality,they inherit and develop the TRIPS Agreement.Second,the legislation of the United States,Germany,Japan and other countries: first,the tort law of the United States is formed as a summary of common law,which affects the subsequent trade secret legislation of the United States.UTSA in the United States is not legally binding on States,but only as a guide.The unfair competition act of the United States strictly follows the definition of trade secret by UTSA.Second,Japan’s "prevention and control law" on the confidentiality of trade secrets is related to confidentiality and management,while Germany’s "protection law" believes that confidentiality is the basis of economy,and there is no economy without confidentiality.The third chapter discusses the suggestions on the improvement of the confidentiality judgment elements of China’s trade secrets,discusses from the two dimensions of confidentiality "not known to the public" and "not easy to obtain",and expounds the burden of proof of confidentiality.First,analysis of the elements of "not known to the public" : first,the number standard should be a floating value area,because there will be slight deviations in practice.Second,industry standards should be divided into industry inner circle and industry outer circle,which should be applied in combination.Second,the analysis of "not easy to obtain" elements: first,the judgment standard of technical information,and the real reference factors are the innovation degree and actual efficiency of the technical information.Second,the judgment standard of business information should be judged from the acquisition cost and confidentiality measures,and focus on confidentiality measures.Third,the burden of proof of confidentiality: first,the limitations of positive responsibility.If the obligee is absolutely required to bear positive responsibility,it will put the obligee in trouble.Second,the change of the distribution and transfer rules of the burden of proof in the new anti law,as long as the obligee provides preliminary evidence,it breaks through the requirements of "who claims,who provides evidence" in the old anti law.On the other hand,it is of certain significance to improve the trial and save judicial resources.