Patents and trade secrets

The following are the specific differences between patents and trade secrets. Trade secret is a special kind of intellectual property. According to Article 2 19 of the Criminal Law of People's Republic of China (PRC), the so-called 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 secret by the obligee. Trade secrets are "unknown to the public", that is, as long as they are not common information well known in the industry, information that can keep the lowest secrecy or novelty different from common information constitutes trade secrets. A patent is an invention-creation, that is, an application for a patent for an invention, utility model or design is filed with the State Patent Office, and after being examined and approved according to law, it is granted the exclusive right of invention-creation within a specified period of time. There are basically two types of trade secrets. First, trade secrets may involve inventions or manufacturing methods that do not meet the requirements of patentability, so they can only be protected as trade secrets. This may be a customer list, or it may be a manufacturing method whose invention is not high enough to apply for a patent (although they may be protected as utility models). On the other hand, trade secrets may involve inventions that meet the requirements of patentability and can be protected by patents. In the latter case, SMEs will face a choice: apply for invention patents or keep them as trade secrets. Some advantages of trade secrets include: the protection of trade secrets is not limited by time (patents can last for 20 years in general). Therefore, as long as trade secrets are not disclosed to the public, their protection can continue indefinitely. There is no need to pay a registration fee for trade secrets (although the cost of confidential information may be high). Trade secrets can take effect immediately. Protecting trade secrets does not require compliance with laws and regulations such as disclosure of information to government departments. However, protecting confidential business information as a business secret also has some disadvantages, especially when the information meets the requirements of patentability: if the secret is included in innovative products, others may be able to find it, dissect and analyze it (that is, reverse engineering), and find it, so as to have the right to use it. In fact, protecting trade secrets does not have the exclusive right to exclude third parties from commercial use of trade secrets. Once a trade secret is made public, anyone can get it and use it at will. The implementation of trade secrets is much more difficult than patents. The degree of protection of trade secrets varies greatly from country to country, but it is generally considered weak, especially compared with the protection given by patents. Trade secrets may be patented by others who develop relevant information through legal means. Patent right refers to the exclusive right to use an invention within a specific period granted by the patent administration department of the State Council. During this period, no natural person, legal person or other organization may carry out his invention and creation without his permission. According to the Patent Law of People's Republic of China (PRC), there are three kinds of patents granted by the Patent Administration Department of the State Council, China: 1. Invention patent. Invention patent, the first paragraph of Article 2 of the Detailed Rules for the Implementation of the Patent Law of People's Republic of China (PRC) stipulates: "Invention as mentioned in the Patent Law refers to a new technical scheme proposed for a product, method or its improvement." This article stipulates that invention patents include "product invention" and "method invention", and can also be patents obtained by improving existing products or methods. 2. Patent for utility model. Patent for utility model, according to the second paragraph of Article 2 of the Detailed Rules for the Implementation of the Patent Law of People's Republic of China (PRC): "Utility model as mentioned in the Patent Law refers to a new technical scheme that is suitable for practical use for the shape, structure or combination of products." This article stipulates that utility model refers to a patent obtained through a product design scheme with a certain shape and structure. Third, the design patent. According to the third paragraph of Article 2 of the Detailed Rules for the Implementation of the Patent Law of People's Republic of China (PRC), the patent for design refers to a new design that is aesthetically pleasing and suitable for industrial application based on the shape, pattern or combination of products and the combination of color, shape and pattern. It has the following characteristics: 1, which is a combination of product design; 2. It can be applied to industrial design; 3. Design that can give people beautiful enjoyment. The patent thus obtained is called a design patent. Theoretically, patent protection and trade secret protection are different: from the perspective of protection, patent protection is the strongest and has a strong exclusiveness. For example, Article 11 of China's Patent Law stipulates that, except as otherwise provided in this Law, no unit or individual may exploit its patented technology without the permission of the patentee, that is, it shall not manufacture, use, promise to sell, sell or import its patented products for production and business purposes, and shall not use its patented methods and use or promise to use its patented technology. However, the protection of trade secrets is obviously weaker than that of patents, and independent research and development and reverse research are not regarded as infringement. From the perspective of protection time, the protection period of patents is strictly limited, and many countries in the world stipulate 20 years for invention patents. However, there is no similar restriction on the protection period of trade secrets. As long as it is kept secret, the right will exist forever. It can be concluded that the strongest protection time is the shortest and the weakest protection time is the longest; For the same technology, the inventor has the right to choose the legal protection that he thinks is most suitable. From another perspective, for the same technology, patent protection and trade secret protection are not completely mutually exclusive. Here we should pay attention to different time periods: first, there may be secrets before the patent application date; Second, secrets may exist from the date of patent application to the date of publication; Third, from the date of publicity, the secret disappears. The first stage protects trade secrets, and the second and third stages protect patents, no problem. To determine patent protection, we must first determine what is a patent: there are three kinds of patents protected by China's patent law, namely invention, utility model and design. Upon the application of the applicant and the examination of China National Intellectual Property Administration, the above-mentioned inventions that meet the patent requirements will be granted the invention patent, utility model patent or design patent respectively. The invention mentioned in China's patent law refers to a new technical scheme proposed for a product, method or its improvement. The term "utility model" as mentioned in the patent law refers to a new technical scheme suitable for practical use for the shape, structure or combination of products. The term "design" as mentioned in the patent law refers to a new design that is aesthetically pleasing and suitable for industrial application. Therefore, patent protection is based on the applicant's disclosure of his invention and creation and the authorization of China National Intellectual Property Administration. The so-called trade secret refers to the technical information and business information that is not known to the public, can bring economic benefits to the obligee, is practical, and is kept confidential by the obligee. Article 10 of China's Anti-Unfair Competition Law clearly stipulates this. Therefore, to determine the protection of trade secrets, we should consider the following six aspects: 1. The secret is known by people outside the business scope of the obligee, and it does not exist when the information called secret has been discovered by people unrelated to the obligee from professional magazines; 2. When the secret is known by people (including employees and partners) within the business scope of the obligee, and the information called secret has been mastered by the company boss and security guard at the same time, its confidentiality is in doubt; 3. Internal security measures. It is not enough to have a confidentiality agreement between the company and its employees. The company should also have its own confidentiality system and file management system. ; 4, external security measures, all means and security measures to limit outsiders' access to secrets, the result may not necessarily prevent the occurrence of stealing secrets, but at least it should increase the difficulty of stealing secrets; 5. The value of a secret, if it is a secret, can be used for profit for the obligee and competitors; 6, the difficulty of developing secrets, independent development, reverse research is not regarded as infringement.