| In the field of trade secrets,the situation of "observation acquisition" consists of two conditions,one is that a piece of information only involves the size,structure,materials,simple combination of components and other content of the product,and the second is that the relevant public can directly obtain by observing the product after entering the market,if a piece of information can be " observation acquisition ",it does not constitute a trade secret.However,due to the cognitive confusion between "observation acquisition " and reverse engineering,the confusion in the interpretation of the " observation acquisition clause," observation acquisition " and the shift of burden of proof in trade secrets.With the strengthening of the awareness of trade secret protection,it is more imperative to clarify the issue of the recognition standard of the "observation acquisition" situation.This paper firstly introduces the background of the legislation and application of"observation acquisition" in China,and puts forward the problem of confusion in the standard of "observation acquisition" in China.Secondly,this paper clarifies the theoretical basis of "observation acquisition",and concludes that the theoretical basis of "observation acquisition" is the relative secrecy of trade secrets,and "observation acquisition" belongs to a kind of "easy access"."The paper explains the reasons for the different standards of "observation acquisition",and clarifies the difference between "observation acquisition" and reverse engineering.Again,this paper summarizes and outlines the domestic judicial practice,foreign legislation and judicial practice,and finds that while the domestic standards vary,the United States emphasizes the objective principle,while Japan adopts the monetary quantification standard.Finally,this paper proposes that a strict distinction should be made between"observation acquisition" and "use disclosure" in patent law;the way of considering the determination of "observation acquisition" should be improved;and the principle of objectivity and the standard of difficulty should be adhered to.The principle of objectivity and the standard of difficulty should be adhered to,and the monetary quantification standard of Japan can be reasonably borrowed. |
