The Supreme Court issued a regulation that the judicial interpretation first clarified the reverse engineering method and legally determined the burden of proof for damages.
At present, there is no special trade secret protection law in China, and the provisions on trade secret protection are scattered in different laws, regulations and departmental rules. In addition, legislators have different understandings of trade secrets, which leads to disharmony among some legal provisions.
How to legally obtain trade secrets
Obtaining or using the same information through legal means does not constitute infringement of trade secrets. These legal means are: independent development and acquisition; Legal purchase; Obtained from open channel observation; Legally accept licenses obtained through reverse engineering and newly added licenses.
"The commercial secrets obtained through reverse engineering are legal" was first clarified by the Supreme People's Court, which excited the nerves of people in the industry, because it meant "excluding legal risks" and "benefiting the technological development of China".
In this judicial interpretation on the trial of unfair competition cases issued by the Supreme People's Court, the rules of damages and burden of proof are also clarified. In fact, before the introduction of the rules, some local courts have dealt with similar rules, but they have never been "corrected". This judicial interpretation makes the judicial activities of the court more transparent and authoritative, and also gives unified guidance to the trial of trade secret disputes, which is a major improvement of the legal protection system of trade secrets in China. This report published in this edition interprets the profound meaning of judicial interpretation from this level.
Legal Network Correspondent Ma Lei Legal Network Reporter Yuan
"The trade secrets obtained through reverse engineering are legal."
The Supreme People's Court 65438+ 10/7 released the first judicial interpretation on the trial of unfair competition cases, which really excited the insiders. It is understood that this provision is clear for the first time in China.
In judicial interpretation, reverse engineering is defined as disassembling, mapping and analyzing products obtained from open channels through technical means to obtain relevant technical information of products.
"This judicial interpretation clarifies the legality of reverse engineering, eliminates legal risks and is conducive to China's technological development." Liu Xiang, a lawyer of Beijing Jiuhe Law Firm, commented.
Legalization of reverse engineering is the proper meaning of this system.
Not long ago, Dr. Xu Min, president of Chery Engineering Research Institute, proudly said: "The research and development of Chery Automobile has crossed the stage of reverse engineering and imitation innovation in just a few years and entered the stage of positive research and development."
In fact, if the time is pushed back to a year ago, Chery Company (hereinafter referred to as Chery) may not be so optimistic. At that time, they were still worried about an unfair competition lawsuit with South Korea's Daewoo General Group (hereinafter referred to as Daewoo General).
The main reason for GM Daewoo's lawsuit is that the design of Chery QQ car is strikingly similar to its own car, and it is believed that Chery QQ car has not been independently developed, nor does it have the time and technical conditions to manufacture QQ car through reverse engineering, which constitutes unfair competition.
Some experts believe that from the perspective of automobile development in Japan, South Korea and other countries, imitation is the only way. China automobile, which is still weak in research and development, should make rational use of non-patented technology and learn from the technology of international popular models in the early stage of development.
Although this lawsuit ended in reconciliation between the two parties, the lawsuit in the past three years has made this lawsuit a "classic case that China legal workers and entrepreneurs should seriously study". An industry insider bluntly said. Some insiders even speculate that the Chery lawsuit has promoted this judicial interpretation of the Supreme Court to a certain extent.
Wei Zhi, an associate professor at Peking University Law School, has his own unique views on the legality of reverse engineering. He believes that "even if the Supreme Court does not make such a judicial interpretation, it is legal for reverse engineering to obtain trade secrets." Because, "in the civil field,' freedom can be done without prohibition', the law only stipulates that it is illegal to obtain the trade secrets of the obligee by theft, inducement, coercion or other improper means, but does not prohibit reverse engineering from being illegal."
Wei Zhi explained this from a legal point of view. "People who advocate business secrets are selfish. The reason why he didn't apply for a patent, but sought protection in the form of trade secrets is because applying for a patent requires the disclosure of technology. After a period of protection, the patent right no longer belongs to someone, but is shared by the society. The patent system is conducive to social progress, while the unfair meeting of trade secrets leads to repeated development of society and waste of resources. Therefore, the law stipulates that the right holder of trade secrets must undertake the confidentiality work himself, and once the secret is leaked, he will bear the risk himself. Therefore, reverse engineering is also considered as a normal means to obtain trade secrets. "