One of the legislative highlights of the "General Principles of the Civil Law" is that Article 123, paragraph 2 (5), includes "trade secrets" as intellectual property objects for protection. In the past, due to the nature of "trade secrets" The controversy has been settled, which is also the legislative affirmation of the right to trade secrets in my country’s civil substantive laws.
The General Principles of Civil Law stipulate the importance of trade secrets
Trade secrets originated from Roman law, and trade secrets as a legal term first appeared in the British "Monopoly Act" in 1623. Countries and international organizations around the world generally attach great importance to the protection of trade secrets and regulate the protection of trade secrets.
The term "trade secret" first appeared in our country's legal provisions in Articles 66 and 120 of the Civil Procedure Law (1991), and the "Regulations of the Supreme People's Court on the Application of Laws and Regulations of the People's Republic of China" Article 154 of the "Opinions on Several Issues in the Civil Procedure Law" (1992) provides further explanations of "trade secrets" stipulated in the "Civil Procedure Law". However, since the "General Principles of Civil Law" and other substantive laws do not provide for trade secrets, so in The substantive law to be relied upon when trying trade secret cases is absent. It was not until the 1993 Anti-Unfair Competition Law explicitly stated that "trade secrets" were also a right that most cases involving trade secrets relied on the Anti-Unfair Competition Law as the main legal basis.
Article 123 of the "General Principles of the Civil Law" stipulates that trade secrets are the object of intellectual property rights, which provides a legal basis for the establishment of trade secret rights. We can confidently determine that trade secret rights are intellectual property rights, and use trade secrets as the basis for the establishment of trade secret rights. The right provides legal protection to the commercial secrets of civil subjects, and provides the most basic legal basis for civil law protection of the obligee's commercial secret rights. In addition, the "General Principles of the Civil Law" incorporates trade secrets into the objects of intellectual property rights for protection, which is particularly helpful in establishing market management concepts of fairness, honesty, and credibility, organically combining the basic principles of civil law with the inherent requirements of the market economy, and building a harmonious and harmonious society. Consolidate good market order.
The definition and characteristics of trade secret rights
Trade secret rights refer to the freedom of market operators (including natural persons, legal persons and unincorporated organizations) to control trade secrets within the legal scope and exclude others. infringed rights. The nature of trade secret rights is intellectual property rights. It has the essential characteristics of intellectual property rights and is a form of right that protects creative achievements. But unlike traditional intellectual property rights, trade secret rights are a new type of intellectual property rights, because traditional intellectual property rights have the characteristics of openness, deadlines, absolute exclusivity, etc., but trade secret rights have the following unique characteristics: First, commercial The right to confidentiality is relatively exclusive. The right subject of trade secret rights is not single. Multiple rights subjects of the same trade secret can possess, use, dispose of and benefit from the trade secret. Second, the object of trade secret rights, namely business secrets, includes technical information and business information, which itself also has its own characteristics. Among them, technical secrets have high or low creativity, while business information usually has no obvious creativity. When determining whether a piece of information is When it is a trade secret, its confidentiality and value become key. Third, the protection period of trade secret rights is not certain. There is no legal provision for the protection period of trade secret rights. As long as the trade secret is not disclosed by the right holder or leaked by the infringer, it will always be protected by the law. Fourth, due to the confidential nature of trade secrets, the establishment of trade secret rights does not require state approval and is automatically obtained from the date the trade secret is generated.
The subjects and objects of trade secret rights
The subjects of trade secret rights include the owner of the trade secret and the users of the trade secret with the permission of the owner of the trade secret. When trade secret rights are infringed, the owner and user have the right to ask the infringer to stop the infringement and bear legal responsibility. The “persons” here include natural persons, legal persons and unincorporated organizations. Even individual industrial and commercial households, individual partnerships, etc. can also become the subject of trade secret rights.
The object of rights of trade secret rights is trade secrets. Trade secrets are technical information and business information that are not known to the public, can bring economic benefits to the right holder, are practical, and have been kept secret by the right holder.
Trade secrets do not have an exact scope and mainly include two categories: First, technical information, which usually includes but is not limited to manufacturing technology, design or manufacturing methods, product formulas, process flows, testing technology, circuit design, technical pointers, patent trends or new technologies. Predictions of technical impact, drawings, molds, samples, operating manuals, technical documents, databases, etc. The second is business information, which usually includes but is not limited to management methods, marketing strategies, customer lists, marketing intelligence, short, medium and long-term development directions and trends of products, undisclosed financial resources, third-party business secrets that need to be protected, management know-how, and procurement. channels etc.
There is controversy in my country’s practice over what constitutes a trade secret. Analyzing the definition of trade secrets in the Anti-Unfair Competition Law, trade secrets must have four constituent elements: First, they are not known to the public, that is, they are confidential, and the state of the trade secrets should be that they have not been disclosed and are not known to the public. As is generally known, this is the biggest difference between trade secrets and other intellectual property rights, and it is also the most essential feature of trade secrets. The second is that it can bring economic benefits to the right holder, that is, value. The trade secret can bring actual or expected or potential economic benefits to the right holder through current or future use and maintain a competitive advantage. The third is practicality, which refers to the objective usefulness of trade secrets, that is, economic value can be created for everyone through the use of trade secrets. It has certain practicality and is an inevitable requirement for realizing the value of trade secrets. Fourth, the right holder has taken confidentiality measures, that is, confidentiality. The right holder has taken certain confidentiality measures, so that it is not easy for ordinary people to obtain it directly from public channels. This requirement emphasizes the confidentiality behavior of the right holder, not the result of confidentiality.
Contents and limitations of trade secret rights
The content of trade secret rights is the rights and obligations regarding the exercise of "trade secret rights". Since trade secret rights are intellectual property rights and an intangible property right, the right holders of trade secrets have the same rights to possess, use, benefit from and dispose of trade secrets in accordance with the law, just like the right holders of tangible property. The first is the right of possession, which is the actual control and management of the trade secret by the right holder. The actual control and management of trade secrets by the right holder is the prerequisite for trade secrets to bring competitive advantage. This control and management includes taking reasonable confidentiality measures to prevent others from obtaining, leaking and using it through improper means. The second is the right to use. The right holder can use the trade secret according to the nature and purpose of the trade secret. Rights holders have the right to use their business secrets in accordance with the law, and others are not allowed to interfere. Under legal circumstances or as agreed by the parties, non-rights holders may also use the trade secret. The third is the right to income. The right holder has the right to obtain corresponding economic benefits by using it himself or permitting others to use it. He can also obtain economic benefits from the transferee by transferring the trade secret. Rights holders can also use trade secrets as investments to obtain economic benefits in production and operations. The right to income is generally exercised by the obligee. When others exercise the trade secret, unless otherwise provided by law or contract, the income belongs to the obligee. The fourth is the right of disposal. The owner of a trade secret has the right to dispose of his or her own trade secrets.
In accordance with Article 132 of the "General Principles of the Civil Law", which stipulates that "civil subjects shall not abuse civil rights to harm national interests, social public interests or the legitimate rights and interests of others", the obligee of commercial secret rights shall not , shall not harm the interests of the public and the legitimate rights and interests of others, and accept the restrictions of the law. Restrictions on the right to trade secrets mainly include restrictions on the right to trade secrets by the legitimate rights and interests of others and restrictions from social public interests. The former refers to when others obtain trade secrets through legal means such as taking advantage of other people's legitimate rights and interests to restrict trade secret rights, obtaining trade secrets through independent research and development, obtaining trade secrets through reverse engineering, obtaining trade secrets through other legal means, etc., the owner of the trade secret right shall There is no right to prohibit others from obtaining or using trade secrets. The latter means that the development and utilization of trade secrets shall not harm the interests of the public. When the exercise of trade secret rights harms the interests of the public, restrictions must be imposed. In this case, the person who knows the trade secret shall not Disclosure is not considered an infringement, and the state should also intervene in accordance with its authority and hold the holders of trade secrets legally accountable.