Protect the "unspeakable secret" of the company
Since 2001, World Intellectual Property Day has passed 20 years.
These 20 years have also been the stage of rapid technological innovation.
As a way to balance the protection of creative labor and invention and encourage and promote social sharing, intellectual property protection has received more and more attention in my country, and its trademark rights, patent rights, copyrights and other rights have increasingly entered the public eye.
"Compared with the above-mentioned rights of having a name and a surname, trade secrets are like the part of an iceberg under the sea. Although it is not obvious, it is often more important in modern enterprise competition. For example, TSMC, a leading company in the chip industry, More than 90% of its intellectual property is protected by trade secrets, and the share of patents is relatively small.” said Liu Chuntian, dean of the School of Intellectual Property of Renmin University of China and chairman of the Intellectual Property Law Research Institute of the Chinese Law Society.
On April 25, the Supreme People's Procuratorate held the 38th Prosecution Open Day and Prosecution Forum on the Judicial Protection of Trade Secrets, focusing on the issue of trade secret protection.
Increased demand for protection of trade secrets
A set of data released on the forum illustrates the current status of insufficient protection of trade secrets——
In 2020, procuratorial organs across the country prosecuted 5,847 cases of infringement of intellectual property rights, 12,163, and trademark infringement cases accounted for 94.2% of the total, copyright infringement cases accounted for 5.3%, and trade secret infringement cases accounted for 0.5%.
"Patent rights are publicity in exchange for protection, let the society know that there is this plan, and other people can innovate on this basis. It is exclusive within a certain period of time, and the person who uses it needs to pay for it." Deputy Chief of the Intellectual Property Court of the Supreme People's Court Li Jian said.
"And trade secrets are not widely exclusive. Others can use the same technology through normal channels, but it is the real capital of enterprise competition." Liu Chuntian explained. For example, making Jingdezhen porcelain requires 72 processes, but the trade secrets may be There are thousands of kinds, "the actions of feeding into the kiln, the intensity of the fire control, the time, etc., are all commercial secrets."
Trade secrets are not disclosed, and there is no protection period. Companies will choose to protect intellectual property in the form of patents or trade secrets according to different needs.
For example, the formula of Coca-Cola is protected as a trade secret.
Although the number of cases involving trade secrets is not large, the upward trend is obvious.
"Compared with 2018, the number of cases and the number of people prosecuted for infringement of trade secrets in 2019 has increased by 51.9% and 60.7%, respectively." Song Jianli, deputy director of the Intellectual Property Prosecution Office of the Supreme People’s Procuratorate, analyzed that the implementation of the The Criminal Law Amendment (11) lowered the threshold for criminal protection of trade secrets, and the number of corresponding cases is expected to continue to rise.
Difficulties in collecting evidence in judicial practice
While the demand for protection is rising, there are also many difficulties in judicial practice.
"Currently, there are difficulties in collecting evidence, and various judicial organs have different understanding of evidence identification and legal application." Song Jianli said frankly.
Take the case of Beijing Huajie Information Technology Co., Ltd. infringing on trade secrets as an example. Li Jia and others have joined Chinasoft Rongxin Company as senior software development engineers and other positions. In 2013, the three jointly funded the establishment of a competitive company in the industry-Huajie the company.
One of them still stayed at Chinasoft Rongxin Company, but participated in the operation of Huajie Company. From 2013 to 2016, he provided Chinasoft Rongxin Company's software model data to Huajie Company many times.
In 2017, Chinasoft Rongxin reported the case.
In order to locate the evidence of the crime of infringing on business secrets by the three, the prosecutors found 96 files uploaded by Li Jia and others to modify the source code and delete the original company logo in hundreds of terabytes of data.
The non-publicity, identity, and the correspondence between the target code and the source code of the software involved in the case are highly professional, and it is not easy to lock the evidence.
"In the past three years, 122 people were not approved for arrest in criminal cases of infringement of commercial secrets, with a non-arrest rate of 38.9%. Among them, 103 people were not approved for arrest due to insufficient evidence, accounting for 84% of non-arrest cases. Nine out of 196 people were prosecuted in the same period. The acquittal rate was 4.6%, while the acquittal rate for economic crimes in the same period was 0.1%.” Song Jianshe further explained.
The above-mentioned cases also reflect another major feature in commercial protection cases: more than 80% of the cases involve employees or former employees.
The persons involved in the case were mostly concentrated in core technical positions or senior management positions, and the criminal subjects generally had a relatively high degree of education.
"Some companies have relatively weak daily management of trade secrets. For example, although the rules and regulations or labor contracts generally stipulate that employees have a confidentiality obligation, they have not clearly defined which are trade secrets. Once a dispute occurs, it is difficult to identify trade secrets. "Song Jianli said.
Experts call for special legislation
The difficulty of protecting trade secrets, the long period, the difficulty of proof, and the high cost are common problems in all countries in the world.
How to solve the pain points has attracted people's attention.
Representative of the National People's Congress, Professor Ma Yide of the School of Public Administration and School of Intellectual Property, University of Chinese Academy of Sciences, has called for special legislation on trade secrets on many occasions.
He introduced that in recent years, countries around the world have paid more attention to the protection of trade secrets, and more and more countries have adopted the protection model of special legislation.
As the second largest economy and the leader of emerging economies, it is necessary for China to integrate into the international trend.
"Previously, my country mainly formulated relevant provisions for the protection of trade secrets in the Anti-Unfair Competition Law, but this protection model is no longer suitable for China's current economic development, and it is not conducive to my country's facing the new situation of international competition." Ma Yide It is recommended that as soon as possible sort out the current trade secret protection related content, judicial interpretations, departmental rules and local legislation experience, comprehensively examine the defects of the current system, and formulate a special trade secret law.
(Our reporter Chen Huijuan)