I. The concept of trade secrets

Trade secret refers to the technical information, business information and other commercial information that is not known to the public, has commercial value and has been kept confidential by the right holder. It can be seen that trade secrets have three attributes: (1) they are not known to the public, which means that the information cannot be obtained directly from open channels; (2) Having commercial value means that the information has definite applicability and can bring actual or potential economic benefits or competitive advantages to the right holder; (3) The right holder shall take appropriate confidentiality measures, including signing confidentiality agreements, establishing confidentiality systems and taking other reasonable confidentiality measures.

2. Scope of trade secrets

Trade secrets include technical information and business information: (1) Technical information includes design, procedure, product formula, production process and other information; (2) Business information including management know-how, customer list, source information, production and marketing strategy, bidding and bidding in the bottom price and the content of the tender.

3. Confidentiality measures for trade secrets

The right holder can only make the important technical information and business information constitute a trade secret by taking appropriate confidentiality measures. In order to prevent the disclosure of trade secrets or protect the rights after the disclosure, the confidentiality measures taken for trade secrets are very important. At present, the leakage of trade secrets mainly comes from two ways, one is inside the enterprise; Second, business partners.

(A) How to take security measures within the enterprise

1. The enterprise shall establish a prominent mark on the carrier of the trade secret to make it clear that the information is confidential information and can also distinguish the confidentiality level of the trade secret.

2. The enterprise shall set up a special person responsible for keeping the trade secrets, so that the duties of the confidentiality post are clear.

3. The enterprise shall establish a process system for the use of trade secrets, establish an examination and approval system for the use of trade secrets, and limit the personnel who can have access to trade secrets.

4. The enterprise shall establish a trade secret protection area where conditions permit, and limit the access of certain personnel to the area.

5. The enterprise can separate and preserve the separable trade secrets to avoid the overall disclosure of a certain trade secret.

6. The enterprise shall issue a trade secret protection system to let all employees understand the regulations on the protection of trade secrets.

7. The enterprise shall sign confidentiality agreements and non-competition agreements with employees who have access to trade secrets, so as to avoid the disclosure of trade secrets acquired by employees when they leave the company.

8. The enterprise shall require employees to sign a commitment letter when they leave the company, guaranteeing that they will not copy or store the trade secret information and will not use or disclose the trade secret after leaving the company.

(2) How does the enterprise take confidentiality measures against its business partners

1. The enterprise shall sign a written confidentiality agreement with the other party before cooperating or communicating with the business partner.

2. When providing trade secret information to the other party, the enterprise shall clearly mark the word "confidentiality" on the information carrier, and inform the other party in writing that the information is confidential information. The submitted trade secret carrier may take certain confidentiality measures (such as setting the opening password and viewing the validity period). In addition, the enterprise shall properly keep the handover records of trade secrets.

3. When providing trade secret information to the other party, the enterprise shall consider the scope of the trade secret to be provided, so as not to submit as much as possible to reduce the risk of trade secret disclosure.

4. Relevant systems for external transfer of trade secrets shall be established within the enterprise.

4. Infringement of trade secrets

(1) Obtaining the business secrets of the right holder by theft, inducement, coercion or other improper means;

(2) Disclose, use or allow others to use the business secrets of the right holder obtained by the means mentioned in the preceding paragraph;

(3) The commercial partner, in violation of the contract or the obligee's requirement to keep the trade secret, discloses, uses or allows others to use the obligee's trade secret in its possession;

(4) Employees of the right owner disclose, use or allow others to use the right owner's trade secrets in violation of the contract or the right owner's requirements for keeping trade secrets.

5. If a third party acquires, uses or discloses the trade secrets of others with full knowledge or should have known the foregoing acts, it shall be deemed as infringing on the trade secrets.

V. How to deal with infringement of trade secrets

After the right holder finds that the trade secret has been infringed, he shall take corresponding measures in a timely manner to avoid further infringement of the trade secret and further expansion of the loss. Then how should he take corresponding measures?

(1) Preliminary evidence collection

After discovering that the trade secret has been infringed upon, the right holder shall keep the prima facie evidence of such infringement. The right holder shall also sort out the corresponding evidentiary materials to prove that the infringed trade secret can constitute a legal trade secret.

(2) Apply for industrial and commercial investigation

After collecting preliminary evidence, the right holder shall, in a timely manner, file an application for investigation and punishment with the market supervision and administration department of the place where the infringement is committed, requiring the detention of the right holder's materials containing trade secrets and other relevant materials obtained by the infringer through improper means; Order the respondent to stop selling the products produced using the right holder's trade secrets.

(3) Criminal accountability

The right holder shall promptly analyze the relevant materials investigated and dealt with by the market supervision and administration department. If the infringer may constitute the crime of infringing on trade secrets, the right holder shall timely report to the public security organ and investigate the criminal responsibility of the other party through criminal means.

(4) Civil liability

Trade secrets have economic value, and the infringement of trade secrets will cause economic losses to the right holder, so the right holder needs to ask the infringer to compensate for economic losses through civil liability.

6. Relevant laws and regulations

1. Contract Law of the People's Republic of China

Article 43 A party may not disclose or improperly use a trade secret that it has come to know in the course of concluding a contract, regardless of whether the contract is formed. Where the disclosure or improper use of the trade secret causes losses to the other party, it shall be liable for damages.

2. Anti-unfair Competition Law of the People's Republic of China

(1) Obtaining the trade secrets of the right holder by theft, bribery, fraud, coercion, electronic intrusion or other improper means; (2) Disclosing, using or allowing others to use the business secrets of the right holder obtained by means mentioned in the preceding paragraph; (3) disclosing, using or allowing others to use the trade secret in violation of the duty of confidentiality or the requirements of the right holder for keeping the trade secret; (4) abetting, enticing or helping others to breach the confidentiality obligation or violate the obligee's requirements for keeping the trade secret, obtaining, disclosing, using or allowing others to use the obligee's trade secret. Where any natural person, legal person or unincorporated organization other than the business operator commits an illegal act listed in the preceding paragraph, it shall be regarded as an infringement of trade secrets. Where a third party, knowing or should have known that an employee, former employee or other unit or individual of the right holder of a trade secret has committed an illegal act listed in the first paragraph of this article, still obtains, discloses, uses or allows another person to use the trade secret, it shall be deemed as infringing on the trade secret.

3. Criminal Law of the People's Republic of China

Article 219 Whoever commits any of the following acts of infringing on a trade secret, thus causing heavy losses to the owner of the right of the trade secret, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also, or shall only, be fined; If especially serious consequences are caused, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined:

(1) Obtaining the business secrets of the right holder by theft, inducement, coercion or other improper means;

(2) disclosing, using or allowing others to use the trade secrets of the right holder obtained by means referred to in the preceding paragraph;

(3) disclosing, using or allowing others to use the trade secret they have mastered in violation of the agreement or the obligee's requirements for keeping the trade secret.

Whoever obtains, uses or discloses another person's trade secret with full knowledge or should have known the acts listed in the preceding paragraph shall be deemed as infringing on trade secret.