What contents in the bidding documents belong to trade secrets? Solving Liao Xiaoyang (lawyer of Shigemitsu Law Firm) Answer:
Article 10 of the Anti-Unfair Competition Law and Article 2 19 of the Criminal Law define trade secrets as technical information and commercial information that are not known to the public, can bring economic benefits to the obligee, are practical and are kept confidential by the obligee. The Provisions of the State Administration for Industry and Commerce on Prohibition of Infringement of Trade Secrets stipulates that the confidentiality measures taken by the obligee include concluding confidentiality agreements, establishing confidentiality systems and taking other reasonable confidentiality measures.
There are three ways to judge whether the other party's information belongs to trade secrets in cooperation: one is to conclude a confidentiality agreement. This practice is relatively rare in purchasing; Second, we learned from the bidders. In the procurement agency business, it is embodied as follows: (1) marking confidential contents in the bidding documents; The third is to understand through other projects or communication channels. In purchasing agency, it may be reflected in previous cooperation. If the above three items are not established, it is difficult for bidders to claim that their bidding documents contain trade secrets.
The occurrence of the above situation means that the agency bears the responsibility of confidentiality to the bidder. If an organ uses information belonging to trade secrets when replying to an inquiry, it may be fined 1000 yuan but not more than 200,000 yuan (Article 25 of the Anti-Unfair Competition Law); Whoever causes heavy losses to the right holder of trade secrets shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also or only be fined; Whoever causes especially serious consequences shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and fined (Article 2 19 of the Criminal Law). In addition, Article 34 of the Contract Law also stipulates the liability for infringement of trade secrets: the trade secrets known to the parties in the process of concluding a contract shall not be disclosed or improperly used, regardless of whether the contract is established or not. If the disclosure or improper use of business secrets causes losses to the other party, it shall be liable for damages.
Finally, it should be noted that the provisions of the State Administration for Industry and Commerce on the prohibition of infringement of trade secrets also restrict the technical information and business information of trade secrets, including: design, scheme, product formula, manufacturing process, manufacturing method, management know-how, customer list, source information, production and marketing strategy, tender base price and tender content. Therefore, if an organization needs to use this kind of information in the tender documents, it is suggested to check with the relevant units whether the information belongs to the category of trade secrets, otherwise it may be held accountable for dereliction of duty.
What is a trade secret and what is a trade secret? I mainly work in the task force. The company did not pay any training fees (only travel expenses and wages), nor did it require training institutions to provide us with professional and technical training. (I have relevant drawings, email screenshots, and work handover sheet to prove that it is work) 1. Interpretation of 1, Trade Secrets and Intellectual Property Rights
Refers to the business secrets and intellectual property rights belonging to Party A, as well as technologies, skills, knowledge and inventions (including but not limited to re-innovation, creation and patents, etc.) that Party B has contacted, understood and mastered in his work, and obtained after training.
2. Length of service refers to 65,438+0 years of service for Party A every 65,438+02 months from the date of completion of Party B's training, and less than 65,438+02 months shall be counted as 65,438+0 years.
3. Training fee refers to the registration fee, examination fee, training fee, material fee (excluding textbook fee), evidence collection fee, travel fee (including transportation fee, accommodation fee, communication fee subsidy, petty expenses and expenses for handling relevant documents such as going abroad passport) and salary (including subsidy) (excluding the self-funded part stipulated in the superior documents) paid or borne by Party A during the whole working period after Party B accepts Party A's employment.
2. According to Article 22 of People's Republic of China (PRC) Labor Contract Law, in view of Party A's production and work needs, both parties agree that Party A will send Party B to participate in the work of relevant teams of the Project, and Party B will receive training on new products, new technologies, new materials, new processes, new standards, new skills and management knowledge during this work. To this end, we have reached an agreement on the rights and obligations of both parties involved in related matters, unanimously agreed to the terms stipulated in this agreement, strictly observed the following agreed matters, and assumed the liability for breach of contract.
1. Party A and Party B shall perform their respective duties in strict accordance with the company's employee training management regulations.
2. Both parties believe that the training obtained by Party B through participating in the work of relevant teams of the Project will greatly help Party B to increase knowledge, improve technology and work skills, improve quality and management level, and play a positive role in the development of Party A. ..
3. Party B promises to abide by the relevant provisions of Party A's work discipline, study hard to achieve the expected goal, and apply the learned knowledge and skills to the work and tasks arranged by Party A according to Party A's requirements during the training period.
Both parties agree on technology, skills, knowledge and inventions (including but not limited to re-innovation, creation, patents, etc.). ) belongs to Party A, and Party B shall not disclose Party A's above-mentioned business secrets, infringe upon Party A's intellectual property rights, or illegally profit from a third party other than Party A, otherwise Party A will have the right to investigate Party B's liability for compensation according to relevant state regulations.
Party B guarantees to serve Party A according to the service years agreed by both parties after the expiration of the training period.
For the service period of Party B, please refer to the service period or training fee payment record specified in Paragraph 6 of Article 2 of this Agreement. If the term of the labor contract signed by both parties is shorter than the service period agreed in this agreement, the term of the labor contract after signing this agreement shall be subject to the service period of this agreement. If the service life agreed by both parties is not fulfilled or reached, Party A and Party B shall bear corresponding responsibilities according to the following agreement.
5. 1 In any of the following circumstances, Party A waives the right to claim compensation:
Party A proposes to terminate the labor contract before the service period agreed by both parties expires;
During the term of the Labor Contract, Party B may terminate the Labor Contract due to illness in accordance with national laws and regulations, or be injured at work and reach the disability level of 1-4, and may quit his post;
Retired, or retired.
5.2 Under any of the following circumstances, Party B shall compensate Party A for the training expenses before the expiration of the service period agreed by both parties:
Party B proposes to terminate the labor contract before the service period agreed by both parties expires.
During the term of the Labor Contract, Party B violates the relevant national laws and regulations and the company's relevant systems, resulting in the dissolution of the Labor Contract;
Party B leaves his post without authorization and fails to perform his labor obligations, which causes Party A to terminate the labor contract.
Both parties agree that the service life of Party B in Party A is 65,438+00 years.
7 If Party B violates or fails to perform the service period agreement, it shall pay liquidated damages to Party A before going through the formalities for Party A's resignation ... The amount of liquidated damages is the training expenses that should be shared for the unfulfilled part of the service period. If Party B fails to pay the liquidated damages in time, Party A may deduct it from the fees paid to Party B or solve it through legal channels as required.
After Party B receives the training, Party A can arrange and adjust Party B's post according to Party B's work skills and the needs of future production and operation, which is not regarded as a change to the labor contract between both parties.
What are the business secrets in the bidding documents? Specifically, there are tender contents, pre-tender estimate, design drawings and descriptions, plane layout, construction scheme, technical measures, management measures, time limit plan, quotation, characteristics and highlights of products (systems), model specifications and technical quotation of products (systems), etc. You can look at the database of Beijing Bentong Office.
What belongs to trade secrets 1 and is not known to the public (secrecy) is the core feature of trade secrets, and it is also the difficulty and controversial focus of identifying trade secrets. "Not known to the public" as stipulated by law refers to the secrecy of trade secrets, that is, the trade secrets claimed by the obligee have not entered the "public domain".
Instead of "known information" or "known technology"
. Secrecy is the most striking feature that distinguishes trade secrets from patented technology and well-known technology, and it is also the premise to maintain their economic value and legal protection. A piece of information that is known to the public and can be easily obtained cannot enjoy advantages, and the law does not need protection; A secret that has been made public will make its owner lose an advantage in the competition, and it will no longer need legal protection. 2. Paragraph 3 of Article 2 of Several Provisions on Bringing Economic Benefits (Value) to Right Holders stipulates: "The term" bringing economic benefits and practicality "as mentioned in these Provisions means that the information has certain applicability and can bring real or potential economic benefits or competitive advantages to right holders." This explanation reveals the essential characteristics of trade secrets. It can bring economic benefits to the obligee, which refers to the value of trade secrets and the purpose of legal protection of trade secrets. First of all, the economic benefits that trade secrets can bring to the obligee are often reflected in the economic benefits brought by competitive advantages. Secondly, the economic benefits include not only the economic benefits brought by the application of trade secrets, but also the good results that will be achieved once they are applied. The value of trade secrets includes "actual or potential economic benefits or competitive advantages"
, not limited by the true value. 3. Practicality Practicality refers to the objective usefulness of trade secrets, that is, by using trade secrets, economic value can be created for everyone, which has certain practicality and is an inevitable requirement for realizing the value of trade secrets. Trade secrets must be able to be manufactured or used in order to bring economic benefits to their holders. It is precisely because of the practicality of trade secrets that anyone who has mastered them will be able to put them into practice, so it is so easy and extensive to infringe on trade secrets in the flow of talents. The actual situation requires the certainty of technical information and business information, which should be a relatively independent, complete, concrete and operable scheme or phased technological achievements. Practicality is also reflected in the fact that trade secrets must have certain forms of expression. 4. The confidentiality of trade secrets means that trade secrets have been kept secret by the obligee, and it is difficult for ordinary people to obtain them directly from public channels. This requirement emphasizes the confidential behavior of the obligee, not the result of confidentiality. The reason for this provision is that the law encourages those who fight for rights and should not protect those who sleep on rights. The objective existence of confidentiality makes it difficult for competitors to obtain this information directly through public channels under normal circumstances.
What is a trade secret? What do trade secrets include? Questions from Guangdong readers: Please ask and answer: According to the provisions of the Anti-Unfair Competition Law, "trade secrets refer to technical information and commercial information that are not known to the public, can bring economic benefits to the obligee, and are practical and kept secret by the obligee." That is, trade secrets include technical information and commercial information. The so-called technical information refers to the technical knowledge with economic value (including product technology, product design, process flow, formula, quality control and management measures) that is not known to the public after the right holder takes confidentiality measures. Generally speaking, the holders of technical secrets will not apply for patents in order to avoid publicity. Technical secrets usually include manufacturing technology, design method, production scheme, product formula, research means, technological process, technical specifications, operation skills, testing methods, etc. The carrier of technical secrets can be documents, design drawings, software, etc. It can also be a physical carrier, such as samples, new varieties of animals and plants, etc. The so-called commercial information refers to the methods, experiences or other information of economic value in production, operation and management that are not known to the public after the obligee takes confidentiality measures.
What does a trade secret include? Trade secrets can be divided into two categories: technical information and commercial information.
1. Technical data mainly include: technical design, technical samples, quality control, application test, process flow, industrial formula, chemical formula, manufacturing process, manufacturing method, computer program, etc. As technical information, trade secrets are also called technical secrets, proprietary technologies and non-patented technologies. In international trade, it is usually called know-how.
2. Business information mainly includes: development plan, competition plan, management know-how, customer list, source of goods, production and marketing strategy, financial status, investment and financing plan, pre-tender estimate, negotiation plan, etc. Trade secrets include secrets in the production field and secrets in the business field.
From the perspective of commercial enterprises, the understanding of the scope of trade secrets seems to be broader and more specific, mainly including the following aspects: 1. Products. Refers to the products developed by the company itself and with commercial value, which can be called trade secrets before obtaining patents. Even if the product itself is not a trade secret, the composition and composition of the product may become a trade secret. 2. Formula. Industrial formula is a common form of trade secret. Many food formulations and their chemical synthesis, the exact composition of cosmetics and the proportion of various contents are valuable trade secrets. For example, the formula of Coca-Cola beverage is a famous trade secret. 3. Process procedures. It refers to some devices that can become an efficient process after a specific combination. This technical process may become a trade secret. 4. Machinery and equipment and its improvement. In the market, equipment purchased openly through normal channels cannot be regarded as trade secrets. However, if the company improves it in a unique way, it will have higher production capacity or more uses. Then, this improvement can be used as a trade secret. 5. Research and development archives. How a company records its R&D activities in its archives is also a trade secret. Such as blueprints, drawings, computer data, experimental results, and the design of specific display and development process all belong to this category. Even the documents and records of failed experiments belong to this category and must not fall into the hands of competitors. 6. communication. The general communication of the company is not a trade secret, because it is not a protected object. But some specific communication is related to the company's business activities, which is related to the overall situation. Falling into the hands of competitors will be of great help to each other. This kind of communication is regarded as a trade secret. 7. Internal documents of the company. There are many files in the company, which are very important to all aspects of the company's business activities and should be included in the scope of trade secrets as far as possible. For example, the company's procurement documents record the actual cost of purchasing key materials or services. If competitors see this document, they can calculate the company's pricing for some products, which is very helpful to them. Such files should be included in the scope of trade secrets. Even a piece of computer paper can be a trade secret as long as it is stamped with a seal to indicate the company's inventory at any time. 8. Customer information. Customer information is an important part of trade secrets. If the company can sell its products to anyone in the market at the right price, its customers can't become trade secrets. Usually in the industrial sector, the customer list is protected company information. 9. Financial and accounting statements. The internal financial and accounting statements of a company should belong to the category of trade secrets, except for the public. In developed countries, even which banks the company has contact with can be regarded as trade secrets. 10. Proceedings. The potential lawsuit will bring adverse effects to the company. Therefore, litigation should be included in the scope of trade secrets before it becomes a public fact. 1 1. The company's norms and strategic development norms. The company's long-term norms, internal operations and marketing strategic planning, these internal documents are also trade secrets. Surprisingly, many enterprises do not pay attention to protecting these documents. Therefore, we can say that business secrets exist in all aspects of enterprises, in all aspects of production, supply and marketing of enterprises; At the same time, business secrets appear and disappear constantly in enterprises, and their scope is very extensive. Any "information" that is beneficial to the company and can win in the competition, which is intentionally kept secret by the company and has been kept secret, is a trade secret.
Which of the following are trade secrets? ()。 A