(1) "Environmental-friendly biological insecticide" has been successfully put into technology.
Release date: 2009-11-1810: 53: 36 Source: Keyi.com has been accessed 349 times.
Core tip:
Green environmental protection is a concern of everyone in today's society. Pollution-free vegetables and pollution-free food have become the basic guarantee for the broad masses of people to pursue health. In order to improve people's healthy life quality and expand health elements, Mr. Fang, a member. Com, developed an "environment-friendly bio-pesticide", which is mainly used to produce pollution-free fruit tea. It can improve fruit quality, increase the use value and economic value of agricultural products, and is of great significance to protect the ecological environment.
In order to spread this technology to the whole country and realize its technical value, Mr. Fang applied for technical membership. After many key publicity on the website, there are many people in need of this technical consultation. Just yesterday, Mr. Fang said that this technology has successfully found a cooperative demander. In order to understand the specific cooperation of this technology, the staff of Ecotech. Com paid a return visit to Mr. Fang.
During the return visit, Mr. Fang said that the technology was successfully transferred in June 2009, and the transfer method was technology shareholding. Because of the agreement, it is not convenient to disclose the specific details of this transfer. However, this technology is now in the pilot stage, and mass production can be carried out after the pilot test.
In this regard, the staff of Ecotech. I congratulate Mr. Fang on his success and hope that the technology of website members can be transferred as soon as possible.
(2) Wuhan new regulations: the proportion of intangible assets of intellectual property rights can reach 70%.
Enterprises are encouraged to invest in shares with intangible assets of intellectual property rights, which can account for up to 70% of the registered capital. If the R&D expenses of enterprises and institutions form intangible assets, they can be amortized before tax according to 150% of intangible capital. Today (13), the reporter learned from Wuhan Intellectual Property Office that "Several Provisions on Promoting Intellectual Property Rights in Wuhan" (hereinafter referred to as "Regulations") was promulgated by Wuhan Municipal People's Government and will be officially implemented on February 1 day, which is the first move among sub-provincial cities in China.
The "Regulations" issued this time include establishing and improving the overall coordination mechanism and policy system for intellectual property work, with a total of 34 articles, fully absorbing the advanced experience of Shenzhen, Shanghai and other regions, and some related policies that were previously enjoyed only by coastal open cities can now be enjoyed in Wuhan.
The regulations also point out that the Wuhan municipal government will set up special intellectual property awards such as invention patent award, design award, well-known trademark award and standard award to encourage the creation and application of intellectual property rights. Individuals or units that counterfeit or seriously infringe intellectual property rights shall not undertake government investment projects, participate in government procurement activities or participate in similar exhibition activities in Wuhan within 3 years from the date of identification, and shall not receive government awards, grants or honorary titles.
(3) Together with the negative cases, it can also prove that individuals obtain income by means of intellectual property rights, technology transfer or shareholding.
(Of course, it is not appropriate to follow suit and obtain other people's trade secrets in an infringing way. )
The company sued Zheng students for buying the shares of Aite Company at a fixed price based on its technical secrets, and compensating for the infringement of trade secrets by producing similar products.
Plaintiff: Xuji Electric Co., Ltd. (hereinafter referred to as Xuji Company).
Defendant: Zheng student, male, aged 33, chief engineer of Luohe Aite Electrical Equipment Co., Ltd.
Defendant: Luohe Aite Electric Equipment Co., Ltd. (hereinafter referred to as Aite Company).
1984 12 10, the plaintiff Jixu Company signed the Relay Protection Power Line Carrier Equipment License and Technical Secret Contract with Siemens Company of Germany, and obtained relay protection and carrier technology from Siemens Company for more than 620,000 Deutsche Mark. According to the contract, the plaintiff sent the defendant Zheng and other company personnel to Siemens for carrier technology training in May 1986. After the training, the plaintiff organized scientific researchers, including the defendant Zheng, to develop domestic carrier technology. As one of the project leaders, Zheng participated in the development of ESB-500 single-side power line carrier. 1992 65438+ 10, the plaintiff's ESB-500 single-sided power line carrier passed the appraisal of the Ministry of Mechanical and Electrical Engineering and the Ministry of Energy, and was put into production. On September 6th, 1995, the plaintiff was awarded by Xuchang Municipal People's Government for its remarkable product benefits. The plaintiff kept confidential the technical data, process data and design drawings of the above-mentioned transferred technology and developed products, and did not disclose or transfer the technology to any unit or individual.
Defendant Zheng, as one of the project leaders, participated in the development of the ESB-500 single-sided power line carrier, and from February 199 1 2002 to April 1992, he was engaged in the technical development of the plaintiff's 500F6 remote protection signal audio transmitter project, and was responsible for the design of the whole machine and principle. 1On March 25th, 992, Zheng student and the plaintiff signed a 1 1 year Labor Contract for all employees, stipulating that Zheng students should abide by the national laws, regulations and various rules and regulations formulated by the unit. 1994 10, student Zheng applied for the establishment of the defendant aite company with Luohe cigarette factory with his mastery of power line carrier and remote protection signal audio transmitter technology, and was elected as a director. In Aite Company, no one except Zheng has been engaged in the technical research of power line carrier and remote protection signal audio transmitter, and Aite Company has not conducted reverse engineering research on these two products. 1Feb. 995, Aite Company produced SSB-2000 power line carrier by using the technology provided by Zheng. 1May, 995, Zheng left the company to work for Aite Company without approval. 1September 1995, the average carrier price of SSB-2000 power line was 45,700 yuan/set. At the time of litigation, Aite Company * * * produced this product 1 1 set, with a value of 502,700 yuan, an average profit rate of 37.06% and a profit of186,300 yuan. Aite's products passed the inspection of the quality inspection center of power line carrier in the Ministry of Electric Power Industry on July 28th, 1996.
After Ji Xu discovered the products produced by Aite Company and asked Aite Company and Zheng to stop the infringement, he claimed that Zheng had mastered the power line carrier technology of our company during his tenure in our company. However, during his tenure, he used his own technology to buy shares at a fixed price, co-founded Aite Company with others, and illegally used the technology in production. 1May, 1995, Mr. Zheng left his post without authorization, which interrupted his production task, resulting in a loss of135,000 yuan for our company. Aite Company knew that Zheng was directly involved in the development of power line carrier, but ignored business ethics and used the technical secrets illegally provided by Zheng to produce power line carrier, which violated our business secrets. Request the court to order Zheng Student and Aite Company to stop their acts of infringement and unfair competition, and order Zheng Student to compensate our company for the loss of 6,543.8+0.35 million yuan caused by unilaterally dissolving the labor contract. The two defendants shall be jointly and severally liable for compensation and have the obligation to keep the business secrets of our company.
The defendant Zheng student did not reply.
The defendant Aite Company argued that the plaintiff's prosecution did not conform to the facts and did not infringe the plaintiff's business secrets.
In the trial procedure, Xuchang Intermediate People's Court extracted the prototype of Aite Company in response to the plaintiff's application for preservation, and entrusted experts to conduct technical appraisal on the products produced by both parties. The conclusion is that the mechanical structure of SSB-2000 power line carrier produced by Aite Company is 15 compared with that of ESB-500 single-sided power line carrier produced by plaintiff company, in which IFC IF transmitting plug-in and IFR are important components. Aite's products use the proprietary technology of plaintiff's products in mechanical structure and some important parts. The court also found that the plaintiff's company spent 2 150 yuan on the investigation and the lawyer's consulting agency spent 25,000 yuan.
Xuchang Intermediate People's Court held that the plaintiff Jixu Company obtained the production technology of power line carrier from Siemens of Germany through the paid technology transfer contract, and developed and produced ESB-500 power line carrier products in China. The plaintiff did not transfer or disclose the product technology to a third party in any way, and adopted a series of confidentiality measures, which brought certain economic benefits to the plaintiff. This technology is the trade secret of the plaintiff and should be protected by law. The defendant Zheng student took advantage of his position to master the trade secret, which violated the confidentiality provisions of the plaintiff company. During his work in the plaintiff's unit, he set up Aite Company as a capital contribution and sold the technology to the company for free to use products for sale. His behavior violated the provisions of Article 10 of the Unfair Competition Law of People's Republic of China (PRC) and infringed upon the legitimate rights and interests of the plaintiff. The defendant Aite Company knew that the power line carrier technology was the plaintiff's technical secret, but for the sake of commercial interests, it lured the defendant Zheng to bring out the plaintiff's technical secret by means of technical pricing, and used this technology to produce products for sale, which was an act of obtaining the obligee's commercial secret by improper means. The plaintiff Ji Xu Company's request for the defendant to stop the infringement and compensate for the losses should be supported. The plaintiff's request for ordering the defendant Zheng student to unilaterally terminate the labor contract, which caused losses to the plaintiff, belongs to the scope of labor disputes and should be handled separately. According to the provisions of Article 118 of the General Principles of the Civil Law of People's Republic of China (PRC), Article 10 and Paragraph 1 of Article 20 of the Anti-Unfair Competition Law of People's Republic of China (PRC), the court ruled in June 1997:
1. Defendants Zheng Student and Aite Company shall immediately stop the infringement from the effective date of the judgment, and shall not use the plaintiff's power line carrier technology for production and business activities, and shall undertake the obligation of confidentiality for the plaintiff's technical secrets that have been known.
2. The two defendants jointly compensated the plaintiff for economic losses of 213,450 yuan.
3. Reject the plaintiff's other claims.
The defendant Zheng student refused to accept the judgment of the first instance and appealed to the Higher People's Court of Henan Province, claiming that the Siemens technology purchased by the company had long been widely known and did not constitute a trade secret. Aite's products adopt three adjustment technologies in principle, which are different from Xu Ji's products. My technical service has no causal relationship with the products of Aite Company and the technical secrets of Xuji Company, and I request to modify it. After the appeal, Zheng student submitted the technical evaluation opinion that Henan Fawei Law Firm entrusted four experts in Beijing to compare the SSB-2000 power line carrier of Aite Company with the ESB-500X single-sided power line carrier of Xuji Company in June 197. According to this opinion, the power line carrier has become a specialized and serialized universal product, and the corresponding monograph is published in 1992. Therefore, the series products of various manufacturers in the market will have some similarities. The main technical contents of SSB-2000 and ESB-500X power carrier machines are quite different, and they belong to products of different ages and different technical characteristics.
Ji Xu Company replied that the imported technology was successfully localized and reached the international advanced level at that time, which was unknown to the public and practical. Our company has also taken necessary security measures. It is our trade secret, and the right to use and transfer belongs to our company. Zheng, a technician of our company, took advantage of various conditions provided by the company to participate in the development of this technology. He used this technology to invest in Aite Company and produce products for sale. How can we say that there is no causal relationship between the two? Request to dismiss the appeal and uphold the original judgment.
In addition to the above facts ascertained in the first instance, the Higher People's Court of Henan Province also found out that Aite Company produced SSB-2000 power carrier 1 1 set, and sold 6 sets, with a sales amount of168,000 yuan and a profit of 62 160 yuan. According to the "Company Profile" in its quotation, its products are developed on the basis of absorbing foreign advanced technologies (such as Siemens in Germany and ABB in Switzerland) and combining with the specific requirements of domestic power system. The expert appraisal opinion made by the court of first instance on whether the products of Xuji Company and Aite Company belong to the same technology also pointed out that Xuji Company's products reflect the advanced technology imported from Siemens, and the unique style and proprietary technology of the digested and absorbed power line carrier series products are different from any other type of power line carrier products in China in terms of mechanical structure and electrical performance principle. The basis of Beijing experts' evaluation opinions submitted by the appellant Zheng after the appeal mainly includes: the wiring diagram specification of ESB-500X single-sided power line carrier, the technical specification of SSB-2000 power line carrier and the real SSB (SPC)-2000 carrier; A complete set of drawings of two products and ESB-500X machine were not provided; The SSB (SPC)-2000 machine provided was not the product of Aite Company when the court of first instance ruled that it should be preserved.
The Higher People's Court of Henan Province held that Jixu Company obtained the power line carrier technology from Siemens of Germany, developed and produced the ESB-500 product through localization, passed the technical appraisal of relevant departments, and its performance reached the international advanced level of similar products, and its technical achievements were owned by Jixu Company. This technical achievement has brought certain economic benefits to Xuji Company, and the company has also taken necessary safety measures. The company did not sell or disclose the information in any way. This is a business secret of the company and is protected by law. No one else may use or transfer it without the company's permission. The appellant used to be a technician of Xuji Company, and mastered the principle and technology of ESB-500 machine by using the conditions provided by the company. The technology it has mastered belongs to Xuji Company, and the appellant shall not use it for individuals or other units without the permission of Xuji Company. The appellant participated in the establishment of XJ company during his tenure, violating the confidentiality agreement with XJ company, and took the mastered technology as a share at a fixed price to produce SSB-2000 power carrier for XJ company. This behavior belongs to the disclosure and use of commercial secrets of XJ company, which infringes on the legitimate rights and interests of XJ company and should bear civil liability for stopping the infringement and compensating for the losses. Aite Company knows that Zheng is an on-the-job technician of the company who has mastered the technical secrets. In the absence of a legal transferee, the appellant was induced to use the technology of Xuji Company to produce products and sell them by means of technology pricing. His behavior is to obtain other people's business secrets by unfair competition, and he should bear civil liability for infringement with the appellant. It is correct to order the appellant and Aite Company to stop the infringement and compensate the losses. The appellant claimed that the technology transferred by Xuji Company was a well-known technology, not a trade secret, and its technical shares and products of Aite Company had no causal relationship with Xuji Company's technical secret, because the fact that Xuji Company paid for the transfer itself indicated that the technology was not a public technology at that time; Aite Company agreed that the appellant took this technology as the share price, which also indicated that it was not aware of this technology at this time. The appellant used Ji Xu's technology in the production of Aite's products, and there was an inevitable causal relationship between Aite's products and Ji Xu's technology, so the appellant's appeal reason was not established. As for the expert evaluation opinions submitted by the appellant after the appeal, because the evaluation opinions are based on incomplete information, there is no complete set of drawings to compare the two products, there is no physical object of Ji Xu's products, and the products provided by Aite Company have not been preserved, so the evaluation opinions lack objectivity and comparability and are not adopted. The first trial found that Aite Company's profit from infringement and Xuji Company's loss were wrong and should be corrected. According to the provisions of Item (3) of Paragraph 1 of Article 153 of the Civil Procedure Law of People's Republic of China (PRC), our court ruled on March 27th, 20 14 1998:
First, maintain the first and third items of the first-instance judgment, and cancel the second item.
Two. The appellant and Aite Company jointly compensated Xuji Company for its economic loss of 62 160 yuan, which was completed within 15 days after this judgment came into effect.
Comment on the trial process of this case, the dispute between the two sides is the most intense and critical basis for the finalization of this case, mainly focusing on the following three aspects:
1. Does the production technology of power line carrier belong to the trade secret of plaintiff Ji Xu? Paragraph 3 of Article 10 of People's Republic of China (PRC) Anti-Unfair Competition Law stipulates that trade secrets refer to technical information and business information that are not known to the public, can bring economic benefits to the obligee, and are practical and kept confidential by the obligee. Technical information includes design, procedure, product formula, manufacturing process, manufacturing method and other information. If the information becomes a trade secret, according to the above provisions, the following conditions must be met: ① it is not known to the public, that is, it cannot be directly obtained from public channels; (2) It can bring economic benefits to the obligee and is practical, that is, the information has certain applicability and can bring real or potential economic benefits or competitive advantages to the obligee; (3) The obligee has taken confidentiality measures for the information, including signing a confidentiality agreement, establishing a confidentiality system and taking other reasonable confidentiality measures.
In this case, Ji Xu company obtained the power line carrier technology of Siemens company for a fee, which means that the technology is not widely known; Through digestion and absorption, domestic research and development, Xuji Company has made its products have unique style and proprietary technology, and its product performance has reached the advanced level of similar products in the world. Compared with any other type of power line carrier product in China, this product has its unique technical characteristics and know-how, which has been fully affirmed in the product appraisal of two national departments and the expert group appraisal conclusion in litigation, thus determining that this technical achievement is unknown to the public.
After the technology was put into production, the effect was remarkable, and it was awarded by the local government in September 1995, which showed that it was economical and practical.
In terms of safety measures, Xuji Company has formulated safety regulations, which clearly define the technical safety scope and safety measures. In the Labor Contract signed with employees including Zheng, the confidentiality discipline was also clarified. All these indicate that Xuji Company has taken necessary security measures for production technology achievements including power line carrier. The technical achievements have not been sold or made public in any way, which fully conforms to the characteristics of trade secrets. First, the court of second instance correctly determined that the technical achievements belonged to the commercial secrets of the plaintiff Xu Ji Company.
Second, the question whether the production process of SSB-2000 power line carrier of the defendant Aite Company is the same as that of the ESB-500 power line carrier of Xuji Company is related to the identification of the same performance of the original and the defendant, which directly affects the identification of the commercial secrets of Xuji Company.
Article 6 of People's Republic of China (PRC)'s Technology Contract Law stipulates: "The technical achievements made by performing the tasks of the unit or mainly using the material and technical conditions of the unit belong to the technical achievements of the post. The right to use and transfer the technical achievements of the post belongs to the unit. " Carrying out the tasks of the unit, including the on-the-job personnel who undertake the scientific research and technological development projects of the unit; Perform the duties of this position; Retired and demobilized personnel will continue to undertake scientific research and technological development projects of the original unit or perform their original post responsibilities within one year after leaving the original unit.
In this case, judging from the facts and evidence found in the first and second trials, the post responsibility of the defendant Zheng student in the plaintiff company is the product development and research of "power line carrier communication and electronic system automation", and he has mastered the whole machine technology of ESB-500 by using the conditions and job convenience provided by the company. Judging from the time when it bought shares from the defendant Aite Company at a fixed price, the SSB-2000 power line carrier developed by it was still working in Xuji Company. The development of SSB-2000 power line carrier not only did not exceed the post responsibilities, but also fulfilled the post responsibilities. Its behavior belongs to the category of "carrying out the tasks of the unit". If there are technological achievements, they should also belong to Xuji Company according to law. In the course of litigation, the court of first instance entrusted experts to compare and identify the ESB-500 and SSB-2000 power line carrier machines. The results showed that the products of Aite Company were basically the same as those of Xuji Company, and the original and defendant had the same production technology.
Therefore, the technical achievements of power line carrier in this case, whether from the perspective of trade secrets or from the perspective of job technical achievements, should belong to Xuji Company according to law. On this basis, it is correct for the two courts to determine that the actions of the two defendants constitute infringement and make them bear corresponding civil liabilities.