On The Identification Standard Of Reasonable Confidentiality Measures For Trade Secrets

The identification of reasonable confidentiality measures is of great significance for trade secret infringement litigation.It affects the confirmation of rights and infringement judgment in trade secret litigation,which is related to the correct division of rights and obligations between obligees and others.Although the "interpretation of unfair competition" and "Several Provisions on civil cases of trade secrets" are involved in this,because the enumeration of considerations is non exhaustive and does not provide guidance on the connotation and judgment of a single consideration,they fail to provide a rational standard for the determination of reasonable confidentiality measures.The relevant provisions are only declarative in judicial decisions,and the court tends to apply the standards summarized by itself to determine reasonable confidentiality measures,However,there are great differences between them,which affects the expectation of the obligee when taking confidentiality measures and the unity of judicial standards of similar cases.Therefore,it is necessary to seek a clearer standard for identifying reasonable confidentiality measures.Based on the clues of confidentiality intention,identifiability and effectiveness,this paper analyzes many problems and their causes of the identification of reasonable confidentiality measures.On this basis,combined with foreign experience and the current situation of judicial practice in China,this paper puts forward relevant suggestions on constructing a unified identification standard.This paper points out that we should build a unified standard for the identification of reasonable confidentiality measures in China based on confidentiality intention,identifiability and effectiveness,that is,reasonable confidentiality measures should reflect the confidentiality intention,identifiability and effectiveness of obligees,and explains the relevant concepts.On this basis,the following suggestions are given for the identification of reasonable confidentiality measures: for ignoring the review of confidentiality intention,it is suggested to strictly review the confidentiality intention,not only to review the existence of confidentiality measures,but also to pay attention to the continuity of the application of confidentiality measures,especially the connection of confidentiality measures taken in the complex situation of trade secrets changing hands;In view of the different requirements for the degree of identifiability,it is suggested to clarify the minimum requirements for identifiability,which only requires the obligee to clarify the subject of trade secret,as long as it can distinguish trade secret from general knowledge and enable the defendant to determine the boundary of trade secret;In view of the fact that the effectiveness has not been implemented,it is suggested to strictly distinguish between de facto and legal confidentiality measures,and pay attention to reviewing the effectiveness of confidentiality measures rather than limited to the form of confidentiality measures.It is suggested to determine the effectiveness of untimely confidentiality measures with reference to the consequences of disclosure.Generally,the confidentiality measures taken by the obligee should be timely.In some specific cases,although the trade secrets have been leaked,If the general public does not know or take effective measures to prevent the disclosure of a small part of the business secret that is not known by the general public,then it must continue to take effective measures to prevent the general public from disclosing the business secret.