1. What are the basic characteristics of trade secrets
Trade secrets and others Compared with intellectual property rights (patent rights, trademark rights, copyrights, etc.), it has the following 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-exclusiveness
Trade 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-related
Can enable operators to gain benefits and gain competitive advantages, or Has potential commercial benefits.
4. Protection period
The protection period of trade secrets is not statutory and depends on rights confidentiality measures and the disclosure of this secret by others. A technical secret may last for a long time due to the right holder's effective confidentiality measures and the application value of the technology itself, far exceeding the period of protection of the patented technology.
2. Calculation of loss of trade secrets
The calculation of loss of trade secrets is roughly It is divided into the following two types:
One is based on the losses suffered by the trade secret right holder due to infringement as 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: the investment in the development of the trade secret, the maturity level of the trade secret, the utilization cycle of the trade secret and whether it can be reused, as well as the use and transfer of the trade secret, the supply and demand situation of the market, etc.
The second is to use the benefits gained by the infringer from the infringement as the amount of loss and compensation. 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.
In judicial practice, the losses of trade secret rights holders are often difficult to calculate, 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, the profit cannot be simply based on sales volume, nor can the profit be calculated by multiplying the total price of the products produced by the average profit rate. Generally speaking, It is more appropriate to calculate the profit amount by multiplying the sales volume by the average profit margin. The losses of the trade secret right holder include losses already suffered and losses that must be suffered, that is, direct losses and indirect losses, while the profits of the infringer are actual profits and do not include expected profits. However, considering that there is a possibility rather than a certainty that a transaction between a trade secret right holder and an actual or potential customer can be concluded, risks in transactions are always present. In order to fairly, completely and comprehensively protect the interests of all parties, in judicial practice some courts multiply the infringer's sales by 1/2 of the average profit rate as the profit amount. This approach is worth learning from.
In judicial practice, the handling of cases in which criminal acts cause losses to victims should generally be based on the amount of civil compensation that the tortfeasor should bear to determine the amount of damage caused to the right holder. Amount of loss. As for the infringement of trade secrets, according to the provisions of Article 20, Paragraph 1 of the Anti-Unfair Competition Law, 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 to ask, orGo to LegalSavior.com to consult a professional lawyer.