Compared with general intellectual property rights such as trademarks, patents and copyrights, trade secrets have their particularity. In recent years, with the development of economy and the increasing number of trade secret disputes, the research in the field of trade secrets can not be ignored. Let's look at a case (simulation) first?
Factory A, the walls around the factory area are closed, leaving a gate, which is close to public roads, and the gate is closed at ordinary times. One day, the door was open, and it happened that a person from factory B passed by the door along the road and saw the new design of the products in the factory yard that had not yet been listed. So I kept it in mind and went back to the factory to put it into production and sales, and achieved benefits. Just as the gate of Factory A was opened, the staff of Factory C did not walk in front of the door, but climbed over the wall and entered the yard of Factory A. After seeing the new design of the product, they fled in a hurry and returned to the factory to put into production and sales. Less than two years after the incident, Factory A approached Factory B and Factory C respectively, believing that these two factories had infringed on their own trade secrets.
Analysis:
When a factory opens the door, it is a disadvantage for the personnel of B factory to see the product shape design, which belongs to confidentiality measures. A has lost its business secrets relative to B, and the personnel of B factory have the right of way. It is not an improper means to wait and see, so B factory does not constitute infringement.
The door of a factory is not used by C factory, and the fence is confidential relative to C factory, so A gave the business secret to C. C didn't get the information through A's door, but stole it over the wall, which is an improper means and constitutes an infringement of A's business secret.
As can be seen from the above cases, trade secrets are different from general intellectual property rights. In this case, if the design of Factory A is a patent, both factories constitute infringement. As for trademarks, patents and copyrights, as long as the defendant copies (uses) their objects for commercial purposes, no matter what means, it constitutes infringement. Trade secrets, on the other hand, can confront the confidentiality obligor and those who take improper means, but not those who obtain and use them through proper means. In practice, we must consider the behavior of both sides and pay attention to relativity.
The difference between trade secrets and general intellectual property rights lies in that the obligatory subjects of trademark rights, patent rights and copyrights of general intellectual property rights are not specific, and the object of their rights positioning is anyone (within the efficiency range of legal space), which has the effect of resisting a third party, is exclusive, exclusive and absolute, and is ownership.
Business secret is the right of people within a certain range to "take confidentiality measures". This right has no effect on a bona fide third party outside the scope of a specific person, because the third party is not a person within a specific scope and has no obligation to a specific person. At the same time, as long as it is not an improper means, even if the business secret information of the obligee is obtained, it is also possessed in good faith and can be implemented. This is different from general intellectual property rights, and the specific differences are as follows: First, unlike patent rights, patents are not allowed to be re-developed. Within the space effect of the law, no matter what means are used to obtain the same scheme as the patent, it cannot be implemented for commercial purposes. Secondly, unlike trademark rights, any third party other than the parties to a licensing contract has no right to use a registered trademark within the legal space. Third, unlike copyright, only the property right part can resist any third party other than the parties to the license contract.
As can be seen from the above, trade secrets are different from general intellectual property rights. As a civil right, they have their own particularity, and the core is their relativity:
1. Relativity between specific debtors.
Trade secrets are produced by "taking certain security measures". This prerequisite determines that this right is a right relative to a specific person within the scope of confidentiality. It can't resist people who use proper means to master secrets other than specific people. It has no obvious exclusivity, exclusivity and exclusivity, and it is not an absolute right, but a relative right. In this sense, it is a creditor's right.
2. Correlation between confidentiality measures and improper means.
For people outside the scope of confidentiality, whether a certain degree of confidentiality measures can constitute legal confidentiality measures in actual cases is relative to the means of the other party. If there is evidence advantage after comparison, it can be considered as a legal confidentiality measure, and the other party also constitutes an improper means, and trade secrets exist. On the other hand, if there is no evidence advantage after comparison, it can be considered that it cannot constitute a legal confidentiality measure, and the other party becomes a legal means, and the business secret does not exist. In practice, other means with evidence advantage can also be considered as legitimate means, except that the other party adopts "reverse engineering" or "repeated research and development".
In the competition, enterprises should study how to use the principle of trade secrets and take appropriate measures to realize the trade secrets of their achievements. Otherwise, the results may become public information, rather than the object of trade secret rights, and property rights will be lost in vain. In the competition, enterprises should study how to use the principle of trade secrets and take appropriate measures to obtain information legally.