1. How to calculate losses from infringement of trade secrets
1. In judicial practice, the calculation of losses to trade secrets is roughly divided into the following categories:
(1) The losses suffered by the owner of trade secrets due to infringement shall be used as the basis for conviction and sentencing. and the basis for actual compensation;
(2) All the calculable losses in property and income of the trade secret obligee shall be regarded as the amount of loss.
2. The amount of loss and compensation shall be the benefit obtained by the infringer due to the infringement;This kind of loss The calculation is based on the premise that the infringer has not disclosed or transferred it to a third party and has not made it known to the public. If a trade secret is illegally sold to others, the income from the illegal sale shall be the amount of loss; if a trade secret is illegally used for production and business activities, the profit gained or increased shall be the amount of loss. If the infringer's behavior is indirect use (such as using the technical information and business information of the original unit brought by job-hopping employees, etc.), the benefits generated shall be the amount of loss and compensation;
3. The amount of loss and compensation shall be no less than the reasonable usage fee of the trade secret license.
4. Law Basis: "Criminal Law of the People's Republic of China"
Article 219 [Crime of Infringement of Trade Secrets] Any of the following acts of infringement of trade secrets , if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not more than three years and concurrently or solely with a fine; if the circumstances are particularly serious, he shall be sentenced to fixed-term imprisonment of not less than three years and not more than ten years and shall also be fined:
(1) Obtaining the right holder’s business secrets through theft, bribery, fraud, coercion, electronic intrusion or other improper means;
(2) Disclosing, using or allowing others to use the right holder’s business secrets obtained by means of the previous paragraph;
(3) Violating confidentiality obligations Or violate the obligee's requirements for keeping trade secrets by disclosing, using or allowing others to use the trade secrets in his possession.
Whoever knowingly obtains, discloses, uses or allows others to use the trade secrets listed in the preceding paragraph shall be deemed to have infringed the trade secret theory.
The rights holder mentioned in this article refers to the owner of the trade secret and the user of the trade secret with the permission of the owner of the trade secret.
2. Can criminal and incidental civil lawsuits be filed in cases of trade secret infringement
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1. "Those who suffer material losses due to criminal infringement of their personal rights or whose property is destroyed by criminals may file an incidental civil lawsuit." . It can be seen that not all infringements can be filed with criminal incidental civil lawsuits. Only cases where personal rights are infringed upon and property is destroyed by criminals and material losses are suffered can be filed. Criminal incidental civil lawsuits can be filed before requesting the court to punish the criminal suspect. When criminal acts are identified, the purpose of obtaining civil compensation is achieved;
2. Once business secrets are leaked, the rights holder's losses are often irreparable. In criminal trials, it is generally believed that this kind of loss should refer to actual losses, and actual losses include both direct losses and the actual benefits that the right holder will inevitably lose. Moreover, the losses caused to the right holder by infringement of trade secrets cannot only be based on the amount. On the basis of focusing on direct factors such as research and development costs, utilization cycle, maturity, market prospects, etc., various related factors, such as competitive advantages, should be comprehensively considered. Loss of status, decline in business reputation, etc.
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