(A) the advantages of trade secret protection compared with patent protection
(1) There is no limit on the duration of trade secret protection.
According to the Anti-Unfair Competition Law, Opinions of Henan Higher People's Court on Relevant Issues in the Trial of Trade Secret Cases and other relevant laws and regulations, as long as the trade secret meets the legal conditions and the obligor knows or should know the trade secret, he shall perform the obligation of confidentiality until the trade secret is made public. In short, the term of confidentiality obligation is the same as that of trade secret, that is, the obligor should perform the confidentiality obligation during the period when the trade secret is not made public. As long as the protection measures taken by the trade secret holder are enough to prevent the trade secret from being leaked, the economic benefits brought by the trade secret can be obtained indefinitely.
And patent protection is because the law clearly stipulates the protection period. When the legal protection period expires, the patent right will be terminated, that is, the patented technology has become a social resource and anyone can use it for free. The patentee no longer enjoys the exclusive right, and without his consent, no other unit or individual may be prohibited from using the patented technology.
(2) The procedure of obtaining protection is simple and takes less time.
A technical information or business information can be protected by law as long as the enterprise adopts confidentiality measures, such as concluding confidentiality agreements, establishing enterprise confidentiality system, and educating employees on confidentiality, without going through complicated procedures such as application and technology disclosure.
Relatively speaking, the procedure of obtaining patent protection is much more complicated. Patent applicants need to fully prepare the application materials in accordance with the provisions of the relevant patent law, apply for registration with the patent administrative department of the State Council, issue corresponding patent certificates after preliminary examination and publication, and register and announce them at the same time. Articles 26, 27, 34 to 40 of China's Patent Law (revised in 2008) make specific provisions on matters related to patent application.
(3) There is no need to pay application fees, annual fees and other fees, and the cost is relatively low for trade secrets with relatively small value.
Unlike the patentee who relies on the direct provisions of the law to obtain the exclusive right to use, the trade secret holder mainly protects all his trade secrets through his own protective measures, and the cost of confidentiality is mostly the expenditure of taking confidentiality measures, establishing confidentiality rules and regulations, educating employees on confidentiality, and signing confidentiality agreements. However, the confidentiality expenditure of trade secrets is flexible, and the obligee can flexibly decide the confidentiality cost according to the value of trade secrets.
According to Articles 43 and 44 of the Patent Law of People's Republic of China (PRC) (revised in 2008), the patentee shall pay the annual fee from the year when the patent right is granted. If the annual fee is not paid as required, the patent right shall be terminated before the expiration of the time limit. Therefore, regardless of the patent value, patent protection requires the patentee to pay the application fee and annual fee according to law, otherwise it will bear adverse legal consequences. The cost of patent protection is too high for those technologies whose own value is not enough to cover the protection cost.
(4) The scope of protection of trade secrets is wider than that of patents.
According to the Anti-Unfair Competition Law, the protection objects of trade secrets mainly include technical information and commercial information. On the basis of Anti-Unfair Competition Law, Several Provisions of the State Administration for Industry and Commerce on Prohibiting Infringement of Trade Secrets (Amendment), Answers of Beijing Higher People's Court on Several Issues Concerning the Trial of Anti-Unfair Competition Cases (Gao Jing Fa Fa Fa [1998] No.73) and Opinions of the State Science and Technology Commission on Strengthening the Management of Technical Secrets in the Flow of Scientific and Technological Personnel, The technical data not only includes the complete technical scheme related to design, procedure, product formula, manufacturing process and manufacturing method, but also includes the staged technical achievements, valuable technical data and technical know-how to solve technical problems. Business information mainly includes: business strategy, management know-how, customer list, supply information, production and marketing strategy, pre-tender estimate and bidding content.
The object of patent protection is only technical information, not including commercial information. According to Article 2 of the Patent Law of People's Republic of China (PRC) (revised in 2008), the object of patent protection includes but is not limited to technical information such as products, methods or new technical solutions proposed by their improvement.
(5) Trade secrets are used for protection, and there is no need to disclose trade secrets.
The law requires that the constituent elements of trade secrets are in a secret state of "unknown to the public", which can bring economic benefits and competitive advantages to the obligee. The obligee who adopts the way of trade secret protection does not need to disclose the contents of trade secrets to anyone. Just because there is no need to disclose trade secrets, it prevents others from creating more competitive trade secrets on the basis of referring to the original trade secrets, thus affecting the competitive position of the original trade secrets.
Patent applications need to disclose technology. According to Articles 34 and 40 of the Patent Law of People's Republic of China (PRC) (revised in 2008), inventions, utility models and designs applying for patents must be made public before or after the application is approved according to law. In other words, obtaining patent protection is at the expense of disclosing the patented technical content. Once the technical content is made public, it is impossible to prohibit others from referring to the published technical information under the legal premise and developing technologies with the same or more valuable functions, which will pose a potential threat to the economic interests and competitive position of the patentee.
(6) The standard of constitutive requirements of trade secrets is low.
Judging from the relevant laws and regulations in China, trade secrets have three elements, including not being known to the public; It can bring economic benefits to the obligee, is practical and protected by the obligee. Compared with patents, trade secrets require less novelty and creativity. "Not known to the public" only requires that business secrets are generally not known to people in the field with the obligee. As for the security measures adopted, the standard stipulated by Chinese law is "reasonable", that is, as long as the obligee makes others know or should know the existence of the trade secret, it can be judged that the security measures adopted by him are reasonable.
However, Articles 22 and 23 of the Patent Law of People's Republic of China (PRC) (revised in 2008) set strict requirements on the technology to be patented. Inventions and utility models that require patent rights should be novel, creative and practical. Novelty means that the invention or utility model does not belong to the prior art; No unit or individual filed an application for the same invention or utility model with the administrative department for patent in the State Council before the filing date, and it was recorded in the patent application documents published or announced after the filing date. Creativity means that compared with the prior art, the invention has outstanding substantive features and remarkable progress, and the utility model has substantive features and progress. Practicality means that the invention or utility model can be manufactured or used and can produce positive effects.
The design granted the patent right does not belong to the existing design, and it is obviously different from the existing design or the combination of existing design features; Before the filing date, no unit or individual has filed an application with the patent administration department of the State Council for the same design, and it is recorded in the patent documents published after the filing date. The law requires high novelty, creativity and practicality in patent application. Many technical information failed to apply for a patent because it did not meet the requirements, which caused great losses to the right holders of technical information.
(7) There are no geographical restrictions on the protection of trade secrets.
Trade secrets are mainly protected by the right holder's confidentiality measures. This protection has no geographical restrictions and is effective at home and abroad. For example, the formula of Coca-Cola is protected as a trade secret, and the whole world is a trade secret, so others can't spy on it. Patent protection is different. The premise of obtaining patent protection is to apply to the patent administration department according to law. The granted patent right is only valid within the space validity of the law on which the patent is based. If you want to enjoy the patent right of the same technology in other countries or regions, you must apply through legal procedures according to the laws of other countries or regions and be approved to grant the patent right after passing the examination.
(B) the disadvantages of trade secret protection compared with patent protection
(1) China has no special legislation to protect trade secrets.
At present, China's laws and regulations on the protection of trade secrets are scattered in some laws and regulations, judicial interpretations and departmental rules, and the legislature has not yet formulated a law to regulate and protect trade secrets. With the development of science and technology in social economy, trade secrets play an increasingly important role. For some enterprises, business secrets are the capital for their survival and the driving force for their development, so they are paid more and more attention.
At the same time, the phenomenon of infringing on trade secrets is becoming more and more serious, so it is urgent and necessary to formulate a law to regulate and protect trade secrets. With regard to patent protection, China has relatively perfect special legislation, mainly the Patent Law of People's Republic of China (PRC) and the Detailed Rules for the Implementation of the Patent Law of People's Republic of China (PRC). Other administrative regulations, local regulations and judicial interpretations have also made detailed supplementary provisions on patents.
(2) The protection of trade secrets is relative.
The right to trade secrets is a relative right, and its prohibition effect is limited to the act of infringing trade secrets, which is not as good as the act of legally obtaining trade secrets by others. Therefore, the obligee has no right to prohibit others from obtaining the same trade secrets through independent research and development, reverse engineering and other legal means. On the other hand, patent protection is not the case. If a patent applicant is granted a patent right after passing the examination by the patent administrative department of the State Council according to law, he enjoys the exclusive right of the patent and has the right to exclude any unit or individual from applying for a patent for the same or similar patent, regardless of whether it is obtained through legal channels.
(3) The possibility of losing rights is high.
Once the trade secrets are made public, it will lead to the legal consequences of "the trade secrets are destroyed because of publicity" stipulated in the Anti-Unfair Competition Law, and the right to trade secrets will naturally disappear.
According to the relevant laws and regulations of our country, the disclosure of trade secrets mainly includes the disclosure of the obligee and the disclosure of the third party. Among them, the disclosure to the third party includes the disclosure caused by the infringement of the third party and the disclosure after the third party obtains the trade secret through legal means such as independent development and reverse engineering. The publicity means of obligees are more complicated and diverse.
For example, as mentioned in the Opinions of Jiangsu Higher People's Court on Relevant Issues in the Trial of Trade Secret Cases (Su Gao Fa Shen Zi [2004] No.3), the obligee may disclose the trade secret because the confidentiality measures taken are obviously improper; The third party can obtain trade secrets through legal means such as infringement, independent development and reverse engineering, and then make the trade secrets public. It is not difficult to find that business secrets are easily forced to be made public because of some intentional or unintentional actions. In short, the more ways trade secrets are made public, the greater the possibility of losing the right to trade secrets.
Patent right is the right granted to the patentee by the patent administration organ according to law. Unless there are some special circumstances, the patentee will not lose his patent right before the expiration of the patent protection period.
According to China's patent law, the special circumstances of patent loss mainly include the following four kinds: failure to pay the annual fee as required leads to the early termination of patent rights; Voluntary waiver of the declaration leads to early termination of the patent right; Declaring the patent right invalid for illegal reasons; And the expiration of the patent protection period. From the above discussion, the obligee of trade secrets is more likely to lose their rights than the patentee.
(4) In intellectual property disputes, it is difficult for the obligee to give evidence in cases of infringement of trade secrets.
Because the right to trade secrets is obtained in the original way, it does not need legal approval, and the government department does not issue a "trade secret certificate". After a trade secret infringement case occurs, the holder of the trade secret should not only provide evidence to prove that the information used by the other party is the same as or substantially the same as its trade secret, but also prove that the other party has taken improper means and has the conditions to obtain the trade secret, and should also prove that the trade secret meets the conditions stipulated by law and is legally owned by it.
If you can't prove that the technical information or commercial information infringed by litigation meets the constitutive requirements of trade secrets, you will lose the case. Patent infringement cases are different. The patentee only needs to prove that the other party has acted improperly and infringed his patent right, and does not need to provide evidence to prove that his patent meets the patent conditions stipulated by law.