article 1 of the anti-unfair competition law defines trade secrets as "the trade secrets mentioned in this article refer to technical information and business information that are not known to the public, can bring economic benefits to the obligee, and are practical and have been kept confidential by the obligee". However, for business operators, they are more concerned about what information of their own enterprises can and need to be protected as trade secrets. Therefore, the identification of trade secrets is mainly to solve two problems: what information may be trade secrets? How to filter out the information that really needs to be protected as a trade secret?
(1) Scope of trade secrets
Theoretically, from the perspective of the enterprise itself, as long as it is not the information that should be disclosed by law, it can be included in the scope of trade secrets, but in fact, considering the cost and benefit, the more trade secrets, the better. Defining information that should not be included in the scope of trade secrets as trade secrets not only increases the cost of enterprises, but also increases the unnecessary difficulty of confidentiality work.
trade secrets include technical information and business information. Technical information can be a complete technical scheme, staged technical achievements and valuable technical data, or it can be technical know-how aimed at specific technical problems. Business information is a kind of information source mastered in the process of dealing in goods and providing services, which can closely connect the company with customers and achieve the purpose of selling products or providing services and obtaining profits.
For example, the business secrets of small and medium-sized enterprises may often exist in the following aspects:
(1) Technology research and development
1. Experimental research and development schemes and methods of research and development of new technologies and new products, important information and phased achievements in the research and development process;
2. Design scheme, design drawings and key data, formula, process and test data of the product;
3. Construction and configuration of laboratories, and composition, level and scale of R&D personnel;
4. Test scheme of new products, including test method, time, place and data.
5. Research and development projects and plans that are of great significance to the economic interests of the enterprise;
6. Make the scientific research development plan and the important forecast and analysis data in the planning process.
(II) Technical achievements and production categories
1. Manufacturing technology and key equipment of products;
2. Technological know-how, raw material formula, production process and production equipment;
3. New products that have not yet entered the market or applied for patents;
4. In the process of digesting and absorbing the imported technology and equipment, the company made major innovations;
5. Unpublished product development plan and product structure adjustment plan;
6. Production plan, product qualification rate, trial production and production of new products;
(3) Marketing business category
1. Sources and prices, supplier list and related information;
2. Marketing strategy, marketing contract, domestic and foreign sales market network and customer list;
3. Internal accounting of costs and prices;
4. negotiation plan, price card, external inquiry and quotation materials in foreign negotiations;
5. The information of the partner in foreign cooperation, and the relevant matters that we should undertake the confidentiality obligation according to the law or the contract;
6. Pre-tender estimate and scheme for external tendering and bidding;
7. Legal affairs information and relevant legal documents;
8. unpublished short-term and long-term development strategies, business strategies and measures.
(4) Finance, accounting and human resources
1. Unpublished financial budget and final accounts reports and various financial statements and statistical statements;
2. Capital status and creditor's rights and debts;
3. Company organization, total wages, personnel management, labor contracts, employee income, personal accounts and related statistical reports;
4. Training and development of human resources and welfare treatment plan.
(II) Identification criteria
As can be seen from the above list, there is a vast amount of information that can be included in the scope of trade secrets in an enterprise, and how to screen out the trade secrets that really need to be protected requires certain standards.
according to article 1 of the anti-unfair competition law, some people classify the criteria for determining trade secrets as secrecy, value, practicality and confidentiality, and only information that meets these four conditions can be called trade secrets. From the perspective of external examination of enterprises, such standards are certainly correct, but from the perspective of safeguarding their own interests within enterprises, they cannot be copied. At least confidentiality is not the standard for enterprises to identify their own trade secrets. Failure to take confidentiality measures shows the need to strengthen protection, and of course, they cannot deny their own trade secrets.
Generally speaking, an enterprise can consider its own trade secrets from the following three aspects:
1. Basic requirements
(1) Value. The purpose of protecting one's own business secrets is to pursue profits, so the first requirement is that the information to be protected has the value of protection. The value is embodied in the economic benefits or competitive advantages that can be brought to the enterprise, including both the actual economic benefits and competitive advantages, as well as the potential economic benefits and competitive advantages embodied through future use. Of course, value includes practicality, and only objective information that can be actually used can be valuable.
(2) secrecy. Trade secrets, as the name implies, should of course be kept secret, otherwise even information that can bring value to enterprises cannot be protected as trade secrets. However, it should be noted that the secrecy here is relative, including information that cannot be obtained directly from public channels, and information that can be known through public channels but whose direct connection with this field is not known to the public. It does not exclude that some enterprises or people with confidentiality obligations know the information, nor does it exclude others from obtaining the secret by legitimate means, as long as they do not disclose it and make it well known in the same industry.
2. Reverse verification
As an auxiliary means, whether an enterprise defines a certain information as its business secret can also be verified from the reverse direction, that is, if this information is leaked, will it cause one of the following consequences:
(1) It will adversely affect the company's production, operation and development;
(2) damage the economic interests of the company;
(3) hinder the company's technological development and progress;
(4) Put the company in a passive or disadvantageous position in commercial competition.
3. Is it the best way
That is, the way of protecting trade secrets should be superior to, or at least equal to, other ways of protecting intellectual property rights. This factor needs to be analyzed in detail, but there are also some empirical rules for reference:
(1) Business information of an enterprise is suitable to be protected by trade secrets;
(2) The unfinished technical scheme, test results, technologies that fail to meet the patent requirements, technical information with short life cycle, and technical information that loses its rights once it is made public should be protected by trade secrets;
(3) Before the invention patent is published, and before the utility model and design patent are authorized, trade secrets shall be used for protection;
(4) The technology that can be easily obtained through reverse engineering is suitable for patent protection;
(5) If the conditions for applying for a patent are met, the protection method of taking the core idea as a trade secret and applying for a patent for the peripheral achievements shall be adopted as far as possible.
(6) The original materials of commercial secret carriers that meet the requirements of originality and reproducibility, such as drawings, models, computer documents, etc., should be preserved, which is not only strong evidence of commercial secrets, but also copyright protection can be considered to remedy once commercial secrets are leaked.
(III) Confidentiality
Confidentiality refers to the classification of business secrets of enterprises and the limited scope of knowledge. Article 9 of the Law on Guarding State Secrets divides state secrets into three levels: top secret, confidential and secret, which can be used for reference by enterprises. Of course, in order to facilitate the management of small and medium-sized enterprises, business secrets can also be divided into two levels, such as "top secret" and "secret". No matter what the classification method is, generally speaking, top secret matters are major research projects and major decisions involving the development and interests of the company. Generally, it is appropriate for the enterprise leaders to make the final determination, and their knowledge is limited to the main leaders of the company and the people directly designated by them.
because business secrets of enterprises are often generated in the process of production and operation, the heads of various departments and project leaders who undertake R&D tasks of enterprises should be the first responsible persons for the identification of business secrets of their own departments (projects), and only they know best which information they contact and master needs to be protected by business secrets. The enterprise may formulate a set of procedures and related documents (such as the Approval Form for Determining the Classified Matters), and all departments shall preliminarily screen the information of trade secrets and preliminarily determine the classified level according to the above-mentioned standards for determining trade secrets, so as to ensure that the departments that generate trade secrets shall assume the confidentiality obligations in time.
(4) Decryption
There will be decryption if there is a secret. Although trade secrets are different from state secrets, there is no conflict between national interests and the public's right to know. In theory, the duration of confidentiality is entirely up to the enterprise itself. However, as mentioned above, information that is no longer necessary to be kept confidential remains confidential, which will only increase the burden on the enterprise, and will also make people question the business secret system of the enterprise and then doubt whether its so-called business secret is established.
1. Factors to be considered in decryption:
(1) Whether it is known to the public.
what the public knows includes: it has been made public by the media, widely used by peers, and generally mastered by technicians in related fields. Technical information that can be obtained through intuitive or simple surveying and mapping, dismantling and other methods of public products is regarded as known to the public. The knowledge of the business secret by the person under the obligation of confidentiality does not constitute public knowledge.
(2) whether it can still bring economic benefits or competitive advantages to enterprises, and whether other intellectual property protection methods are better than trade secret protection methods.
(3) Whether the information that has been protected as a trade secret has been proved to be practical, objective and feasible.
(4) whether corresponding confidentiality measures have been taken, and whether the relevant personnel know that the information they have or come into contact with is information that should be kept confidential.
2. Decryption process
The business secret management unit or confidentiality commissioner of the enterprise shall be responsible for regularly investigating the confidential matters based on the above factors, and instruct the relevant departments to take corresponding confidentiality measures in time for those who meet items (1) to (3) but do not meet item (4), and those who are responsible for human negligence shall be held accountable accordingly; For those who have not met any of the items (1) to (3), put forward opinions on decryption and explain the reasons, and report them to the competent leaders of the enterprise for deliberation and decision after consultation with the departments related to the confidential matters.
III. Trade Secret Management
Trade secret management has two purposes: to minimize leaks; Once the leak can be dealt with in time and protected by law.
(I) Management structure
Depending on the scale and actual needs of the enterprise, a relatively large-scale enterprise can set up a special management committee or management team, while a smaller-scale enterprise can be managed by the company's legal department or only set up a confidentiality commissioner. We should pay attention to the principle of simplification and try to narrow the scope of people who come into contact with trade secrets; At the same time, no matter what kind of structure, we should ensure that we can report directly to the main person in charge of the enterprise when necessary, and we can deal with emergencies in time.
The responsibilities of the special management team or security personnel mainly include:
1. Implementing the rules and regulations of security work and completing various daily tasks;
2. Carry out the confidential work documents and confidential work arrangements issued by the company;
3. Check and assist the heads of various departments to improve the confidentiality regulations and measures for key positions of the company;
4. Check the implementation of confidentiality rules and regulations by various departments, report problems in time and put forward handling opinions;
5. Cooperate with all departments to trace the leakage incidents and cases of stealing secrets, plug the leakage loopholes, and put forward opinions or suggestions on the responsible person of leakage incidents according to regulations;
6. Publicize the knowledge of confidentiality, so that the employees of the company can enhance their sense of confidentiality and abide by the confidentiality laws and regulations.
The responsibilities of the person in charge of the security work mainly include:
1. Issuing the company's security work rules and regulations and relevant documents;
2. Determine the classification of the company's business secrets;
3. Coordinate the confidentiality work of all departments;
4. review and approve the external release and exchange of confidential information of the company;
5. listen to the implementation of the company's confidentiality work and report on various existing problems and emergencies, and make a decision.
In addition, the heads of technical R&D, production, finance, sales and other departments of the enterprise should also assume corresponding confidentiality responsibilities, mainly including:
1. Do a good job in the confidentiality work within the department, and be responsible for the preliminary selection of business secrets involved in the department and the initial classification;
2. Abide by various confidentiality systems, implement the company's rules and decisions on confidentiality, and promptly raise any problems found;
3. Conduct at least one self-inspection on the confidential work within the scope of responsibility every year, and report the self-inspection to the record in written form.
(II) Confidentiality measures
1. Regarding confidentiality measures
According to the provisions of Article 1 of the Anti-Unfair Competition Law, whether or not confidentiality measures are taken is one of the elements for externally identifying trade secrets, so it is also an essential part of the internal trade secret protection work of enterprises. But at the same time, common sense tells us that there is only a limit to the adoption of confidentiality measures, and no advanced measures can fully ensure that business secrets will not be leaked. After all, trade secrets are essentially intangible information. We can prevent tangible carriers from being maliciously spread, but it is impossible to stop people's thoughts and exchanges. Moreover, the strength of adopting confidentiality measures is closely related to the cost of enterprises. Because of this, the legal determination of whether it constitutes a trade secret does not require the right holder's confidentiality measures to prevent the secret from leaking 1%, otherwise it will not need legal protection.
Article 11 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Civil Cases of Unfair Competition has a relatively clear statement for reference, among which the third paragraph stipulates as follows:
"In case of any of the following circumstances, which is enough to prevent the disclosure of confidential information under normal circumstances, it shall be deemed that the obligee has taken confidentiality measures:
(1) Limit the scope of knowledge of confidential information and inform it only to relevant personnel who must know it.
(2) Take preventive measures such as locking for confidential information carriers;
(3) The carrier of confidential information is marked with a confidentiality mark;
(4) adopting passwords or codes for confidential information;
(5) signing a confidentiality agreement;
(6) restricting visitors to confidential machines, factories, workshops and other places or asking for confidentiality;
(7) Other reasonable measures to ensure the confidentiality of information. "
there are two points worthy of attention in this provision, one is "under any of the following circumstances" and the other is "sufficient under normal circumstances", which can be summed up in one word, that is, the minimum requirement for confidentiality measures in law is "to guard against gentlemen but not villains", which is of course better, but it does not reach or hinder the composition of trade secrets. In layman's terms, an enterprise should put a lock on its own door to let others know that what is inside the door is the secret of the enterprise.
Knowing this clearly will make many small and medium-sized business owners feel that business secrets are so unattainable. The seven confidentiality measures listed in the judicial interpretation can be achieved by proper attention and prevention in the daily operation of enterprises, not to mention that the law only requires one of them. Of course, as the obligee,