China News Service, September 4. According to the website of the State Administration for Market Regulation, the State Administration for Market Regulation issued an announcement today to solicit public opinions on the "Provisions on the Protection of Trade Secrets (Draft for Comment)" (hereinafter referred to as the "Draft for Comment").
The "Draft for Solicitation of Comments" detailed the methods of infringement of trade secrets, including clarifying the circumstances under which the "customer list" is protected as trade secrets.
The "Draft for Comments" mentioned that the "Provisions on the Prohibition of Infringement of Commercial Secrets" implemented in 1998 consisted of 12 articles with no chapters.
Taking into account that the “Anti-Unfair Competition Law” revised in 2019 has made significant changes and adjustments to the content of trade secret protection, the current “Draft for Comment” has six chapters and 39 articles, which have been optimized in style, divided into general provisions, Definition of business secrets, violations of business secrets, investigation of suspected violations of business secrets, legal responsibilities and supplementary provisions.
Considering the prohibition of infringement of trade secrets, the ultimate goal is to protect the intellectual property rights and related interests of trade secret owners. Therefore, the State Administration for Market Regulation has adjusted the subject of the original regulations and amended it to the "Provisions on the Protection of Trade Secrets." .
The "Draft for Comment" explains and refines the relevant concepts in Article 9 of the newly revised "Anti-Unfair Competition Law" regarding trade secrets and their constituent elements.
Mainly include: First, define the concepts of trade secrets, technical information, business information, and business information.
The second is to define and refine the three most important components of commercial secrets, namely, "not known to the public", "commercial value", and "taking corresponding confidentiality measures."
The third is to clarify issues such as trade secret rights holders, infringers, and ownership of rights.
The "Draft for Solicitation of Comments" refines the methods of infringement of trade secrets as stipulated in Article 9 of the newly revised "Anti-Unfair Competition Law" to enhance the applicability of the law.
One is to refine the situation of illegally obtaining trade secrets through theft and other methods.
The second is to define concepts such as "disclosure" and "use".
The third is to define "secrecy obligations or violations of rights holders' requirements for keeping business secrets".
The fourth is to define "restricted use of trade secrets".
Fifth, the situation of infringement of others' commercial secrets through instigation, inducement, assistance, etc. is refined.
Sixth, clarify the circumstances in which a third party constitutes an infringement of trade secrets.
Seventh, clarify the circumstances under which the "customer list" is protected as a trade secret.
Eighth, clarify the circumstances that do not constitute an infringement of trade secrets, such as reverse engineering.
On the basis of the original regulations on law enforcement agencies, administrative mediation, etc., the "Draft for Solicitation of Opinions" adds requirements for materials submitted by right holders, entrusted appraisal, and case suspension.
The first is to clarify that the market supervision departments at or above the county level shall supervise, inspect, identify and deal with violations of trade secrets.
The second is to clarify the evidence materials that the right holder should provide when reporting the infringement.
The third is to clarify the circumstances under which appraisal or expert opinions are introduced in trade secret cases; the fourth is to clarify the rules for the market supervision department to determine and adopt the evidence provided by both parties.
Fifth, it is to stipulate the circumstances under which the market supervision department shall preserve evidence involving infringement of trade secrets.
Sixth, procedural content such as case suspension, judicial transfer, and order to stop infringement should be refined.
In the supplementary provisions, the "Draft for Comments" clarifies three points: First, it clarifies the exceptions for the protection of trade secrets, which are in the scope of state secrets, or violate laws and regulations, harm national interests, social public interests, and violate the principle of good faith. The business secrets of the company are not within the protection scope of this regulation.
The second is to clarify the hierarchical jurisdiction provisions for foreign-related cases.
The third is to make clear provisions on the implementation date of the "Regulations" and the abolition of related regulations.