How to identify the infringement of trade secrets by the third party

Hello, the third party refers to the person who directly obtains the business secrets of the obligee other than the actor. In the act of infringing on trade secrets, the owner of trade secrets is the first person; The actor who directly obtains the trade secrets of the obligee is the second person, and the second person includes the actor who obtains, uses or allows others to use the trade secrets by improper means, and the actor who violates the confidentiality agreement or requests to disclose, use or allow others to use the trade secrets in his possession. Third parties can be divided into malicious third parties and bona fide third parties:

(a) Acts of bona fide third parties

The act of a bona fide third party refers to the act that the third party does not know and should not know that the second party has violated the illegal act of Article 1 1 of the Anti-Unfair Competition Law, and obtains, uses or discloses the trade secrets of others. A bona fide third party does not know and should not know that the second party's behavior is illegal. Therefore, the act of a bona fide third party to obtain, use and disclose other people's business secrets is not subjectively wrong, and usually should not bear legal responsibility. However, after knowing the illegal behavior of the actor, he shall continue to use it with the consent of the obligee and pay the corresponding royalties to the obligee.

Article 353 of China's Contract Law stipulates: "If the transferee infringes upon the legitimate rights and interests of others in accordance with the agreement, the transferor shall bear the responsibility, unless otherwise agreed by the parties." This provision does not consider whether the transferee's subjective mental state is intentional or negligent. This provision should only apply to cases where the third party is not at fault. If the third party is at fault, if the transferee does not bear the tort liability to the patentee or the technical secret holder, it will shake the foundation of the patent system and the trade secret protection system and damage the entire intellectual property system.

(2) Tort by a malicious third party

Tort by a malicious third party refers to the act that a third party obtains, uses or discloses other people's business secrets while knowing or should know that the second person has committed an illegal act in violation of Article 10/of the Anti-Unfair Competition Law. The social harm of malicious third-party behavior is essentially the same as that of the second person, and it is also an infringement of the trade secrets of the obligee. China's relevant laws and regulations have clear provisions on the tort of malicious third parties. For example, the second paragraph of Article 10 of the Anti-Unfair Competition Law stipulates: "If a third person knows or should know the illegal acts listed in the preceding paragraph and obtains, uses or discloses other people's trade secrets, it shall be regarded as infringement of trade secrets." Article 8 of the Opinions of the State Science and Technology Commission on Strengthening the Management of Technical Secrets in the Flow of Scientific and Technological Personnel stipulates: "When scientific and technological personnel or relevant personnel are transferred to the unit, the employing unit shall take the initiative to understand the confidentiality obligations and non-competition obligations undertaken by the personnel in the original unit and consciously abide by the above agreement. Knowing that the personnel bear the confidentiality obligation or non-competition obligation of the original unit, and deliberately employ them for the purpose of obtaining relevant technical secrets, they shall bear corresponding legal responsibilities.

There are two elements of malicious third party infringement:

1. Subjective element, that is, the third party "knows or should know" the second person's illegal behavior. Knowing that it is intentional, knowing that it is subjective negligence. In the theory of private law, negligence and intention have the same legal consequences. Therefore, the Anti-Unfair Competition Law treats the malicious third party's knowing behavior and knowing behavior equally, which is regarded as infringement of trade secrets. Neglect refers to the lack of attention of kind managers.

2. Objective elements, that is, the third party objectively commits illegal acts, including obtaining trade secrets from the second party, using or allowing others to use trade secrets, and revealing trade secrets.

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