In the increasingly competitive capital market, business secrets, as high-end information resources of intangible assets, are paid more and more attention by enterprises. However, there are many hidden dangers behind the concern. Although China's Anti-Unfair Competition Law provides judicial protection for trade secrets, the protection is far from meeting the actual needs.
The following is to help you understand trade secrets and the protection methods that can be used from all angles.
(A) the definition of trade secrets
The trade secrets mentioned in Article 10 of the Anti-Unfair Competition Law refer to the technical information and business information that are not known to the public, can bring economic benefits to the obligee, are practical and are kept confidential by the obligee. Thus, the composition conditions of trade secrets include secrecy, economy, practicality and confidentiality.
(B) the status quo of trade secret protection
Due to the particularity of trade secrets, enterprises need to protect them from being made public at all levels, which may involve enterprise management system and personnel themselves, and then due to the existence of many uncontrollable factors, trade secrets may be leaked.
The disclosure of trade secrets may bring a great blow and loss to an enterprise, and it is difficult to trace back afterwards, so the possibility of recovering losses is even smaller.
At present, the way of trade secret litigation is: due to the particularity of trade secrets, most of the infringements occur in hidden situations. At this time, it is difficult for the plaintiff to prove that the infringer has infringed. Therefore, it is necessary to clarify the inversion principle of the burden of proof of trade secrets, that is, the plaintiff only needs to prove the existence of his own trade secrets, and the defendant's trade secrets are the same or basically the same as his own. The law assumes that the plaintiff's claim is established, and the defendant needs to prove that all his business secrets were obtained through legal channels if he wants to be exempted.
(three) the use of intellectual property rights to maximize the protection of trade secrets.
1, intellectual property protection management system
At present, many enterprises committed to intellectual property work are concerned about the field of trade secrets, so they have launched various management software. The basic idea is to prevent any commercial information from leaking from the root, and monitor all the movements of enterprise personnel through the management system as a whole. At the same time, any confidential content during the on-the-job period is managed through the system, and it is not allowed to operate in an environment outside the prescribed scope.
2. Protection of patents and trade secrets
At present, a large part of enterprises may be confused about the protection of their own technology, and do not know what kind of protection can bring them the greatest benefits and rights. The well-known patents are basically contrary to the way of protecting trade secrets. Patents are protected by publicity, while trade secrets are the opposite. So how to use patents to better protect the secrets of enterprises? Pay attention to the comprehensive application of trade secrets and patents.
This paper puts forward a concept: confidentiality intensity. By distinguishing the confidentiality intensity of technical information involved, the protection scheme is finally obtained.
If the intensity is high enough, it can be protected in the form of trade secrets, while if the technical information is relatively confidential, it is best to protect it in the form of patents. For the technical information with medium secret level, we can consider the combination of trade secrets and patent protection. This combination may be a common practice for most intellectual property workers to take technical information as the standard and minimize technical characteristics after public optimization. But there is also the possibility of being rejected because of novelty or lack of creativity. At this time, there is another way, that is, under the premise that the technology involved has the authorization conditions required by the patent law, the trade secret holder only needs to ensure that there are? You can be authorized if you want to be authorized? If there is an undisclosed patent application, the implementation time of technology monopoly can be extended through patent protection after the trade secret is leaked.
How to judge the intensity of secrecy can be judged by the intelligence analysis of intellectual property rights. Among them, the judgment of confidentiality intensity includes: the openness of known information, the technical information field involved and the involvement of related industries.
Actual implementation steps:
A. On the premise of understanding the basic direction of the enterprise, conduct a comprehensive search for related industries to understand the openness and research and development angle of related technologies within the known range;
B. If the technical scheme in this field is highly open and belongs to a mature industry, it can be judged that the confidentiality intensity is weak, and it is suggested that enterprises protect themselves through patents, so as to obtain higher protection;
C. If the technical leakage in this field is small, then the technical information can be listed as the key protection object. At this point, by analyzing the industry to which the technical information belongs, we can finally determine the core protection point and the peripheral protection point. The core protection point here is not known in the fields involved, so the core protection point can be protected as a technical secret, while the relevant technical information in the periphery can be protected through patents. The technical information is divided into core protection points and peripheral protection points, which belong to the range of medium security level;
D. If the technical openness in this field is blank, and the main innovation point is similar information such as process parameters, the technical information can be classified into a range with high confidentiality intensity, and the technical information involved can be simply protected as trade secrets.
Of course, the judgment of confidentiality intensity is not only that, but also needs to be further analyzed through the corresponding actual needs and the technical content involved.