1. Four manifestations of trade secret infringement
(1) Obtaining the business secrets of the obligee through theft, inducement, coercion or other improper means
The so-called "theft" refers to secret theft, including direct theft of business secret documents, Use methods such as monitoring, simulation, photography, and copying to obtain other people's business secrets without others knowing. The so-called "inducement" refers to the behavioral means of obtaining trade secrets by offering certain benefits as an inducement. The so-called "coercion" refers to the behavioral means by which the actor imposes actual or future, mental or physical threats and coercion on others, so that others have to hand over trade secrets. Other unfair means refer to the use of illegal means to obtain business secrets other than those listed above. The key to identification lies in the "unfairness" of the means. "Unfair means" should be based on recognized business ethics and compliance. Common sense behavior is the standard. Anyone who obtains trade secrets through methods that violate business ethics and exceed reasonable limits constitutes infringement. We can also learn from foreign legislation. For example, the U.S. Uniform Trade Secrets Act further clarifies unfair means on the basis of excluding legitimate means, where legitimate means include independent discovery, reverse engineering discovery, and use licenses granted by the owner of the trade secret. Five were found below, observed from products in public use or on display, and obtained from published literature.
(2) Disclosing, using or allowing others to use the right holder’s business secrets obtained by means of the previous paragraph
">This provision is actually a necessary supplement to the first situation. Because after an actor illegally obtains a trade secret, it is difficult to obtain benefits without disclosing, using or allowing others to use it. The so-called "disclosure" refers to making a trade secret known to the public through oral, written or other means, so that people who are not supposed to know can learn the secret, so that the information no longer remains secret. The so-called "use" refers to the act of using trade secrets in production and business activities for the purpose of unfair competition or profit-making. The so-called allow himPrivate use refers to the behavior of a person who obtains a trade secret by improper means and allows others to use the trade secret that he has illegally obtained. This type of infringement is based on the first type of behavior and is often the purpose of unfair acquisition. As for the subjective motivation of the behavior, it does not affect the determination of the nature of the infringement. Using or allowing others to use it is generally for the purpose of illegal profit. The motivation for disclosure is often to retaliate against others or to squeeze out competitors, which is more sinister in nature. It is an infringement as long as the improperly obtained trade secrets are disclosed, used or allowed to be used by others.
(3) Violating the agreement or violating the obligee's requirements for keeping trade secrets, disclosing, using or allowing others to use the trade secrets in his possession
According to judicial practice, people who may learn trade secrets through legal means mainly include the following categories of people: employees who know trade secrets due to business needs; providing certain rights to the owner of trade secrets; External personnel who provide services, such as company consultants, lawyers, accountants, etc.; partners of trade secret rights holders, such as loan banks, suppliers, agents, etc.; transferees who have legally obtained the right to use trade secrets; sales of trade secrets Persons; joint ventures, partners, etc. who use trade secrets as investments or shares. Disclosure or use that violates trust relationship means violating the agreement or violating the right holder’s requirement to keep business secrets, disclosing, using or allowing others to use the business secrets in his possession. This form generally violates the provisions of the incidental obligations of the contract.
(4) Knowing or should have known about the acts listed in the preceding paragraph, obtaining, using or disclosing the trade secrets of others to infringe the trade secret theory
If the aforementioned three behaviors are a direct infringement of trade secrets, then this item refers to an indirect infringement of trade secrets. There is often a third party involved in the crime of infringement of trade secrets. The crime of infringement of trade secrets often requires a subordinate unit to enable the infringer to successfully achieve his goal and obtain illegal gains. According to this provision of the law, a third party can also commit the crime of infringement of trade secrets. Malicious acquisition and use by a third party means that the third party acquires, uses or discloses the trade secrets of others while knowing or should have known that the trade secrets were obtained by illegal means. According to the current legal provisions, a bona fide third party does not directly bear legal liability. To determine the good faith, one must analyze whether the actor subjectively knew or should have known that the source of the trade secret was illegal. There should also be a clear time standard. Once the trade secret rights are If a person notifies a bona fide third party of facts such as illegal theft or breach of contract disclosure by the second party, the good faith will terminate automatically. The notice issued by the trade secret right holder is the time standard for distinguishing bona fide and malicious third parties.
2. Requirements that trade secrets must meet
1. Not known to the public, that is, not known to unspecified persons A secret known to everyone;
2. It can bring economic benefits to the right holder, that is, a certain economic value;
3. Be practical, that is, the trade secret must have actual use value and not just stay at the theoretical level;
4. The right holder must take confidentiality measures. If the right holder does not take confidentiality measures, it means that he himself does not realize that his technical information and business information are business secrets, and the law cannot protect them.
3. Determination of infringement of trade secrets
1. Right to review Whether the technology and business information alleged to have been infringed is a valid trade secret.
2. Identify the technology and business information used by the accused infringer Whether the information is the same as the right holder’s trade secrets.
3. Examine whether the accused infringer has the legal right to use the right holder’s trade secrets, that is, fair use Defend.
