1. What are the main characteristics of trade secrets
1. Trade secrets and Compared with other 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-exclusive
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 obtain benefits, obtain competitive advantages, or have 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 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;
2. Legal basis: "Criminal Law
Article 219 [Crime of infringement of trade secrets] Anyone who commits any of the following acts of infringement of trade secrets, if the circumstances are serious, shall be sentenced to a fixed term of not more than three years Imprisonment, and shall be concurrently or solely fined; if the circumstances are particularly serious, shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years, and shall also be fined:
(1) Theft , bribery, fraud, coercion, electronic intrusion or other improper means to obtain the right holder’s business secrets;
(2) Disclose, use or allow others to use previously Obtaining the right holder’s business secrets by any means;
(3) Violating confidentiality obligations or violating the right holder’s requirements for keeping business secrets, disclosing, using or allowing Others use the trade secrets in their 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. Calculation of trade secret losses
The calculation of loss of trade secrets can be roughly divided into the following two types:
1. First, based on trade secret rights The losses suffered by a person 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 second is to use the benefits obtained 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, when dealing with cases where criminal acts cause losses to victims, the amount of losses caused to the right holder should generally be determined based on the amount of civil compensation that the tortfeasor should bear. 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 for consultation, or go to the Legal Savior website to consult a professional lawyer.