China News Service, July 10, according to the Supreme Public WeChat official account, in order to punish crimes that violate commercial secrets in accordance with the law, increase criminal justice protection of intellectual property rights, and maintain the order of the socialist market economy, the Ministry of Public Security and the Ministry of Public Security have now revised Publicly solicit opinions on the prosecution standard for infringement of commercial secrets. The deadline for feedback is August 23, 2020.
Data map: Supreme People's Procuratorate. China News Agency reporter Li Huisi
The consultation draft pointed out that in order to punish commercial secret infringement crimes, increase the criminal judicial protection of intellectual property rights, maintain the socialist market economic order, and stipulate the Standards for Prosecution of Criminal Cases under the Public Security Organs of the Ministry of Public Security of the Supreme People’s Procuratorate (2) The standard for prosecution of infringement of commercial secrets has the following supplementary provisions:
Amend Article 73 of the "Standard for Prosecution (II)" to read: [Infringement of Trade Secrets (Article 219 of the Criminal Law)] Infringement of commercial secrets, if one of the following circumstances is suspected, the case shall be prosecuted:
(1) Where the amount of losses caused to the owner of the trade secret is more than 500,000 yuan;
(2) The amount of illegal gains due to infringement of business secrets exceeds 500,000 yuan;
(3) Directly causing the owner of the business secret to go bankrupt or fail due to major operational difficulties;
(4) Other situations that cause significant losses to the owners of commercial secrets.
The amount of loss or illegal income specified in the preceding paragraph may be determined in the following manner:
(1) If the right holder's trade secrets are obtained by improper means, but have not been disclosed, used or allowed to be used by others, the amount of loss may be determined according to the reasonable license fee for the trade secrets;
(2) After obtaining the owner’s trade secrets by improper means, and disclosing, using, or allowing others to use, the amount of loss can be determined based on the right owner’s loss of sales profits caused by the infringement, which is less than the trade secret’s reasonable permission to use The fee is determined according to the reasonable license fee;
(3) In violation of the agreement or the obligee’s requirements for keeping commercial secrets and disclosing, using, or allowing others to use the commercial secrets in their possession, the amount of loss may be determined based on the loss of sales profits caused by the infringement by the obligee;
(4) If the trade secret is known to have been obtained by improper means, or if it violates the agreement or the right holder’s request to keep or disclose the trade secret, the amount of loss caused by the still obtaining, using or disclosing may be based on the right holder’s infringement. The loss of sales profit is determined;
(5) Property or other property interests obtained by disclosing or allowing others to use trade secrets shall be deemed as illegal income.
The loss of sales profits caused by the infringement of the right holders specified in the second, third, and fourth paragraphs of the preceding paragraph may be determined based on the total number of reductions in the sales volume caused by the infringement of the right holders multiplied by the reasonable profit of each product of the right holders ; If the total number of reductions in sales volume cannot be determined, it can be determined by multiplying the sales volume of infringing products by the reasonable profit of each product of the right holder. If the amount of loss of the right holder cannot be determined, it can be determined based on the sales volume of the infringing product multiplied by the reasonable profit of each infringing product.
Trade secrets are technical information. If the infringed technical information is part of the owner’s technical scheme or the product infringing the trade secret is a part of another product, the proportion of the infringed technical information in the entire technical scheme should be based on , The role or the value of the product that infringes on the trade secret and its proportion and effect in realizing the profit of the entire finished product determine the amount of loss or illegal income.
If the business secret is business information, the amount of loss or illegal income shall be determined according to such business information's role in the profits obtained from business activities and other factors.
If the trade secret has been known or destroyed by the public due to the violation of the trade secret, the amount of loss may be determined according to the commercial value of the trade secret. The commercial value of a trade secret can be determined by comprehensively considering factors such as research and development costs and the benefits of implementing the trade secret.
The obligee of trade secrets to reduce the commercial losses directly caused by infringement of trade secrets or to restore the security measures such as computer information system security necessary remedial expenses shall be included in the amount of losses of the trade secret right holders.