1. How to calculate losses from leakage of trade secrets
In judicial practice, The calculation of losses for 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, sentencing and actual compensation. .
All the calculable losses in property and income of the trade secret obligee shall be regarded as the amount of loss. This includes both the right holder’s own income and the right holder’s expected income within a number of years. The main factors to consider are: the cost of research and development of trade secrets, the maturity level of trade secrets, the length of the utilization cycle of trade secrets and whether they can be reused, as well as the use and transfer of trade secrets, market supply and demand conditions, etc.
2. The amount of loss and compensation shall be based on the benefits obtained by the infringer due to the infringement.
The calculation of this loss 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.
When the above two methods are inconvenient to calculate, this compensatory method can be used to calculate the amount of loss. This method assumes that when the infringing party obtains permission to use the right holder's trade secret under normal circumstances, what the license fee should be, and then presumes that the amount is the amount of loss, but this does not mean that the infringer has obtained the trade secret. legal right to use. What is particularly worth mentioning here is that criminal law and judicial interpretations have notProvide provisions and explanations for "significant losses" and "particularly serious consequences". In judicial practice, "significant losses" generally refer to economic losses or loss of competitive advantages, competitiveness or even competitive qualifications caused to the right holder's production and business activities; "especially serious consequences" refer to special consequences to the right holder's production and business activities. Significant economic losses may even lead to corporate liquidation and bankruptcy. Since this crime is a consequential crime, it does not constitute a crime if there is no "significant loss". Therefore, based on the principles of legality of crime and appropriateness of crime and punishment, the legislative or judicial organs should make clear provisions or explanations for this to facilitate actual operation.
2. In cases of trade secret infringement, can criminal and civil lawsuits be filed? ?
Legal basis: Article 1 of the "Regulations of the Supreme People's Court on the Scope of Civil Litigation Accompanying Criminal Matters": "Any person whose personal rights are affected by Anyone who suffers material losses due to criminal infringement 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 recognized, the purpose of obtaining civil compensation is achieved.
Once a trade secret is leaked, the rights owner'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. I hope the above content can be helpful to you. If you have other questions, you can click the button below for consultation, or go to the Legal Savior website to consult a professional lawyer.
