R&D achievements were stolen, product formulas leaked, employees "bringing secrets" to change jobs... The infringement of trade secrets became a "stumbling block" for corporate innovation

　　How to protect the "unspeakable secret" of the company

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　　Commercial secrets refer to commercial information such as technical information and business information that are not known to the public, have commercial value, and have been protected by the right holders.

In the pattern of intellectual property protection, trade secrets are the core and competitive intangible wealth of an enterprise.

Experts urged that the relevant content of current trade secret protection should be sorted out as soon as possible, and a special "Trade Secrets Law of the People's Republic of China" should be formulated.

　　"I went to Jingdezhen before. There are 72 main processes for making porcelain in Jingdezhen, but the technical secrets hidden in these 72 processes may be 72 times 10 or even more than 20. For example, the time when the porcelain is put into the kiln and the temperature. Mastering, etc., all involve craftsmanship and reflect different technical secrets."

　　On April 25, at the 38th Prosecution Open Day and Prosecution Forum for the Judicial Protection of Commercial Secrets held by the Supreme People’s Procuratorate, Liu Chuntian, Dean of the School of Intellectual Property of Renmin University of China and President of the Intellectual Property Law Research Institute of the Chinese Law Society, cited the above example.

　　"The current trade secret legislation must be improved and strengthened." Ma Yide, a representative of the National People’s Congress and a professor at the School of Public Administration and the School of Intellectual Property of the University of Chinese Academy of Sciences, said that my country should sort out the current trade secret protection related content as soon as possible and formulate a special "Chinese People The Trade Secrets Act of the Republic.

　　Infringement of trade secrets becomes a “stumbling block” for corporate innovation

　　Theft of research and development results, leakage of product formulas, and employee “bringing secrets” to quit jobs... In recent years, disputes have continued over the protection and contention of trade secrets. Frequent violations of trade secrets have become a “stumbling block” hindering enterprise technological innovation.

　　According to the Anti-Unfair Competition Law, trade secrets refer to commercial information such as technical information and business information that are not known to the public, have commercial value, and have been subject to appropriate confidentiality measures taken by the right holder.

According to the provisions of the Civil Code, trade secrets, together with works, inventions, trademarks, etc., become the object of intellectual property protection.

　　"Trade secrets are like the part of an iceberg under the sea. Although they are not visible, they are often more important in modern enterprise competition." Liu Chuntian said, "For example, TSMC, a leading company in the chip industry, has more than 90% of its intellectual property passed Protected in the form of trade secrets."

　　"In the pattern of intellectual property protection, trade secrets are the core and most competitive intangible wealth of an enterprise." Ma Yide pointed out that statistics show that about 60% of the innovations of current technology companies are first in the form of technology secrets. existing.

　　However, judging from the statistics of criminal cases, the cases of infringement of trade secrets belong to the "niche"-from 2018 to 2020, procuratorial organs across the country prosecuted 98 criminal cases of trade secrets, 196 people, and the number of prosecutions only accounted for the whole country. 0.65% of criminal intellectual property cases in the same period.

　　"Does the small number of cases mean that trade secrets are not important? On the contrary." Song Jianli, deputy director of the Intellectual Property Inspection Office of the Supreme People's Procuratorate, pointed out that the vitality of enterprises lies in innovation. The creation and protection of trade secrets can bring economic benefits and competition to enterprises. Advantage.

　　"The reason why the law protects trade secrets is to encourage and encourage enterprise innovation. If you indulge in trade secret infringement, it will dampen the enthusiasm of enterprise innovation and hinder technological progress and economic and social development." Song Jianli said.

　　More than 80% of cases involve company employees or former employees

　　Although the number of infringements of trade secrets is not large, the increase is significant.

According to reports, the number of cases and the number of people prosecuted for crimes of infringing on trade secrets in 2019 increased by 51.9% and 60.7% respectively over 2018.

　　Song Jianli said frankly, “This type of case is more difficult to handle, and it is urgent to have a unified understanding of the identification of evidence and the application of law.”

　　Song Jianli cited a set of statistics-in the past three years, the arrest of 122 people was not approved in criminal cases of infringement of commercial secrets, and the non-arrest rate was 38.9%.

Among them, 103 persons did not approve the arrest due to insufficient evidence, accounting for 84% of the non-arrest cases.

　　A typical case published on the forum that day illustrates the difficulty of collecting evidence.

　　In the case of Huajie Information Technology Co., Ltd. infringing on trade secrets, Li Jia, Li Moubo, and Li Mouming successively joined Chinasoft Rongxin Company. During their tenure, Li Jia and Li Mouming invested in the establishment of Shanghai Huajie Company, a competition company in the industry.

Later, Li Mouming and Li Mobo left and joined Shanghai Huajie Company. Li Jia still worked at Chinasoft Rongxin Company, but participated in the operation of Shanghai Huajie Company.

From 2013 to 2016, the three provided Huajie Company with software model materials of Chinasoft Rongxin Company for many times, causing losses of more than RMB 1.5 million to the right holder.

　　In handling the case, the procuratorial agency applied for people with expertise and simultaneously assisted in reviewing massive amounts of evidence. They asked for knowledge on key issues such as the non-publicity and identity of the software trade secrets involved, and the correspondence between the target code and the source code. The property right appraisal agency finally ensures that the collected evidence is comprehensive and legal.

　　The case also reflects another characteristic of the crime of infringing on trade secrets. According to Song Jianli, according to incomplete statistics, more than 80% of the cases involve employees or former employees of enterprises, and the persons involved are mostly in core technical positions and senior management positions, with educational backgrounds. Generally higher.

　　"Some companies have relatively weak daily management of trade secrets." Song Jianli pointed out, "For example, it is often stipulated in rules and regulations or labor contracts that employees have the obligation to keep confidential, but they do not define what are trade secrets. Once a dispute occurs, The business secrets of enterprises are difficult to identify."

　　Experts call for legislation to protect trade secrets

　　At the National Two Sessions in recent years, Ma Yide continued to call for special legislation on the protection of trade secrets, "the legislation on trade secrets must be improved and strengthened."

　　Ma Yide introduced that the current intellectual property legislation is concentrated in patent law, trademark law and copyright law, while the protection of trade secrets in our country is scattered only in the anti-unfair competition law, contract law, labor contract law, criminal law, and two high judicial interpretations, lacking a system. Sexual construction has not formed a systematic legal system for market behavior regulation.

　　"Strengthening the legislation of trade secrets is the need to regulate the order of market competition." Ma Yide said that due to the rise of emerging technologies such as the Internet, cloud storage, big data, and artificial intelligence, the cost of misappropriating trade secrets has been significantly reduced, and illegal acts have become increasingly rampant. The awareness of trade secret protection is low, and trade secret disputes continue to occur.

　　"Faced with the anomie of industry competition order, most companies urgently need to improve the current trade secret legislation to protect the legitimate rights and interests of trade secret owners to the maximum extent." Ma Yide said.

　　"From a global perspective, countries are paying more and more attention to the status and role of trade secrets in international trade." Ma Yide introduced that in recent years, 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.

　　Ma Yide urged that the relevant content of current trade secret protection, including judicial interpretations, departmental regulations and local legislative experience, should be sorted out as soon as possible, and a special "Trade Secrets Law of the People's Republic of China" should be formulated. "This is in line with the order of market competition in our country. At the same time, it is also a requirement to improve my country's intellectual property system." Ma Yide said.

　　Our reporter Lu Yue