Technical secrets are secret and not open; Patent technology has the characteristics of openness, exclusiveness and novelty.
Generally speaking, patents cannot be called technical secrets because they are public (except confidential patents). Technical secret refers to technical information in trade secrets, and some people call it proprietary technology, which is know-how in English. According to Article 10 of the Anti-Unfair Competition Law of People's Republic of China (PRC), the so-called trade secrets refer to technical and commercial information that is not known to the public, can bring economic benefits to the obligee, and is practical and kept secret by the obligee. Trade secrets can include, but are not limited to, technical information and commercial information, such as design data, procedures, product formulas, manufacturing processes, manufacturing methods, management know-how, customer lists, source information, production and marketing strategies of the obligee. Among them, not being known to the public means that the information cannot be directly obtained from public channels and can bring economic benefits to the obligee. It is practical, that is, the information can bring real or potential economic benefits or competitive advantages to the obligee, and the obligee takes confidentiality measures, including concluding confidentiality agreements, establishing confidentiality systems and taking other reasonable confidentiality measures.
Protecting one's inventions and creations by means of patents and technical secrets is helpful to protect inventions and creations. Apply for patents for technologies that are easy to disclose, and keep secrets for technologies that are not easy to disclose. Others can produce products according to patented technology, but it is difficult to produce high-quality equivalent products if they can't obtain technical secrets. The double protection of patents and technical secrets is usually better than the single protection of patents or technical secrets.
There are many similarities, but there are differences.
(1) The scope of technical secret protection is greater than the patent system. All technologies that can be protected by the patent system can be protected by the technical secret system, but technologies that cannot and do not need to be protected by the patent system, such as the formula of Coca-Cola mentioned above, the formula of Tongrentang Chinese patent medicine and the assembly process of Swiss watches, are all protected by the technical secret law. (2) The patent system cannot exist independently without the technical secret system. If confidentiality measures are not taken before the patent application, the invention may be leaked.
Secret leakage and loss of novelty make it unable to be protected by patents. The time span of invention-creation from development to patent application and patent grant may be very long, during which technical secret protection is also needed. Some technologies that are not disclosed in patents, staged technological achievements and technical data can be used as supplements to patented technologies and protected through technical secrets. On the contrary, technical secrets can exist independently of patents.
(3) The protection of technical secrets needs to be controlled from the aspects of internal personnel, system and management with the help of the obligee's own strength; Patents are protected by national laws and regulations. Of course, the protection of technical secrets has been gradually incorporated into the scope of national laws and regulations, and those who steal technical secrets and cause great losses should also be sentenced.
(4) Technical secrets are undisclosed technologies. As long as the technology is not made public, enterprises will have long-term control and monopoly rights over the technology, especially for technologies that are difficult for other enterprises and individuals to develop in the short term. Patent is an open technology, the owner can't restrict others' research and imitation, and its protection period is limited.
(5) When different obligees hold the same technical secrets, they all enjoy the same benefits, and it cannot be excluded that others develop the same technology and enjoy the same rights. At the same time, it is not excluded that others can obtain this technology by "reverse engineering" the products of the technical secret controller; The patentee has absolute exclusive rights. That is to say, if one of the holders of the above-mentioned technical secret applies for a patent, the technical secret will become public technology, and he will obtain exclusive rights, which can restrict the other party from continuing to use the "technical secret".