1. What are the characteristics of trade secrets
1. 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 business secrets is not Be known to the public, while other intellectual property rights are public, and there are even requirements for patent rights to be disclosed to a certain extent;
(2), non-exclusive, Trade secrets are 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, which can enable operators to obtain benefits, obtain competitive advantages, or have potential commercial benefits;
(4) Protection period. The protection period of a trade secret is not statutory and depends on the obligee’s confidentiality measures and the disclosure of the 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. Legal basis: Article 219 of the "Criminal Law of the People's Republic of China" [Crime of Infringement of Trade Secrets] Any of the following acts of infringement of trade secrets, Anyone who causes heavy losses to the right holder of a trade secret shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and may also be fined; if particularly serious consequences are caused, he shall be sentenced to fixed-term imprisonment of not less than three years and not more than seven years, and shall also be fined.
2. Trade secret loss calculation
1. The calculation of losses for trade secrets is roughly divided into the following two types:
(1) Based on the losses suffered by the owner of trade secrets due to infringement. As the basis for conviction, sentencing and actual compensation. All the calculable property and income losses of the trade secret right holder should 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. Main considerations The factors include: 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 loss and compensation amount are based on the benefits obtained by the infringement due to the infringement. The calculation of this loss is based on the fact that the infringer has not disclosed or transferred it to a third party and has not used it for other purposes. Public knowledge is the premise. If a trade secret is illegally sold to others, the illegal sales income shall be the amount of loss; if a trade secret is illegally used for production and business activities, the profit gained or increased thereby shall be the amount of loss.
2. In judicial practice, it is often difficult to calculate the losses of the right holder of trade secrets. The courts usually use the profits obtained by the infringer as the basis for judgment. When calculating the infringer’s losses in the infringement When it comes to profits gained due to infringement during the period, the profit amount cannot simply be calculated by sales volume, nor can it be calculated by multiplying the total price of the products produced by the average profit rate. Generally speaking, the profit amount is calculated by multiplying the sales volume by the average profit rate. It is more appropriate to refer to the profit margin as the amount of profit. The losses of the trade secret right holder include the losses that have been suffered and the 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, not an inevitability, in whether a transaction between a trade secret obligee and an actual or potential customer can be concluded, risks in the transaction are always present. In order to fairly, completely and comprehensively safeguard 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 In judicial practice, when dealing with cases where criminal acts cause losses to the victim, the amount of loss caused to the right holder should generally be determined based on the amount of civil compensation that the infringer should bear. As for the infringement of trade secrets, according to the provisions of the Anti-Unfair Competition Law , if an operator infringes on 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 any otherFor questions, you can click the button below to consult, or go to the Legal Savior website to consult a professional lawyer.