1. Trade secrets have several major characteristics
1. Non-disclosure The premise of trade secrets is that they are not known to the public, while other intellectual property rights are public, and patent rights even require disclosure to a considerable extent;
2. Non-exclusivenessTrade secret is a relative right. The proprietary nature of trade secrets is not absolute or exclusive. If others legally obtain the same trade secret, they have the same status as the first person. The owner of a trade secret cannot prevent those who have developed and mastered the information before him from using or transferring the information, nor can he prevent those who have developed and mastered the information after him from using or transferring the information;
3. Interest-relatedcan enable operators to obtain benefits, obtain competitive advantages, or have potential commercial benefits;
style="text-indent:2em;"> span>4. Protection periodThe protection period of a trade secret is not statutory and depends on the rights holder. Confidentiality measures and disclosure of this secret by others. A technical secret may last for a long time due to the effective confidentiality measures of the right holder and the application value of the technology itself, far exceeding the period of protection of the patented technology;
5. Legal basis:Article 9 of the "Anti-Unfair Competition Law of the People's Republic of China" stipulates that operators shall not commit the following acts of infringement of trade secrets:
(1) Obtain the right holder’s business secrets through theft, bribery, fraud, coercion, electronic intrusion or other improper means;
(2) Disclose, use or allow others to use the rights holder’s business secrets obtained by means of the previous paragraph;
(3) Violate confidentiality obligations or violate rights holders’ relevant Requirements to keep trade secrets, disclose, use or allow others to use trade secrets in their possession;
(4) Instigate, induce or help others to violate confidentiality obligations or Obtain, disclose, use or allow others to use the right holder's business secrets in violation of the rights holder's requirements for keeping trade secrets.
2. What is the calculation of trade secret loss
1. The calculation of loss of trade secrets can be roughly divided into the following two types:
(1) Based on The losses suffered by the trade secret right holder due to infringement shall be the basis for conviction, sentencing and actual compensation. All calculable losses in property and income of the trade secret right holder 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: investment in the development of trade secrets, maturity of trade secrets, utilization cycle of trade secrets and whether they can be reused, use and transfer of trade secrets, market supply and demand conditions, etc.;
(2) The amount of loss and compensation shall be 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. For those who illegally sell trade secrets to others, the amount of losses shall be the income from the illegal sale; for those who illegally use trade secrets for production and business activities, the amount of losses shall be the profits gained or increased;
2. In judicial practice, it is often difficult to calculate the losses of trade secret rights holders, and courts usually use the profits obtained by the infringer as the basis for judgment. When calculating the profits gained by the infringer due to infringement during the infringement period, it cannot simply be based on sales volume.In order to calculate the profit amount, it cannot be calculated by multiplying the total price of the products produced by the average profit rate. Under normal circumstances, it is more appropriate to multiply the sales volume by the average profit rate.
In judicial practice, when dealing with cases of victim losses caused by criminal acts, the amount of civil compensation caused to the right holder should generally be determined based on the amount of civil compensation that the tortfeasor should bear. Amount of loss. As far as infringement of trade secrets is concerned, if an operator infringes a trade secret and causes damage to the right holder, he shall be liable for damages. 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 Network to consult a professional lawyer
