Protect trade secrets, let innovation and vitality burst out

　　Trade secrets are the core and most competitive intangible wealth of an enterprise.

At present, the technological achievements of many high-tech companies are protected in the form of trade secrets.

The picture shows the data stream AI chip developed by Shenzhen Kunyun Information Technology Co., Ltd.

Xinhua News Agency

【Dharma Eye View】

Recently, due to a trade secret infringement dispute, Galanz Group, a “veteran powerhouse” in my country's western-style small home appliance industry, and a “rising star” Xinbao shares went to court, arousing social concern.

The core of the dispute is related to the magnetron, the core component of the multi-generation microwave oven, which Galanz Group has invested in research and development of more than 1 billion yuan for 20 years.

Galanz accused Xinbao and its affiliates and their legal representatives of illegally obtaining and using Galanz’s magnetron product trade secrets, and the scale of infringement exceeded 100 million yuan.

Xinbao responded that it "has never produced or sold magnetrons" and stated that it will take necessary legal measures to protect its legitimate rights and interests.

Whether this dispute is right or wrong remains to be cleared by the court.

However, the protection of trade secrets reflected in the case is thought-provoking.

"With the rapid development of new technologies, new models, and new business types, the importance of trade secrets in the intellectual property legal system has continued to increase. In many industries, especially high-tech fields, they have become the mainstay of innovation for enterprises, scientific research institutes, etc. The foundation'." The person in charge of the Third Civil Division of the Supreme People's Court pointed out.

Theft of research and development results, theft of secrets by competitors, "flying orders" of customer lists, employee hopping and leaking of secrets, and outflow of electronic data...In recent years, the protection and competition of trade secrets has gradually become a "war" between enterprises without gunpowder.

Frequent violations of trade secrets have become a “stumbling block” hindering enterprise technological innovation.

Currently, strengthening the protection of trade secrets has become a consensus.

The Fourth Plenary Session of the 19th Central Committee of the Communist Party of China made the decision and deployment of "strengthening the protection of enterprise business secrets".

On November 30, 2020, General Secretary Xi Jinping presided over the 25th collective study of the Politburo of the CPC Central Committee and emphasized that “we must improve the level of legalization of intellectual property protection work” and “we must strengthen legislation in areas such as geographical indications and trade secrets”.

What is the value of trade secrets?

What are the problems faced by trade secret protection and how to solve them?

These questions need to be answered urgently.

Trade secrets: the most competitive intangible wealth of enterprises

　　Coca-Cola has been loved by people since its birth more than 100 years ago, and its trademark is known as the world's most famous trademark.

Lao Ganma, known as the "national hot sauce", has become popular overseas in recent years and has been sought after by many "no spicy food" people.

Their longevity is inseparable from their trade secrets-unique formulas.

　　"Secret recipes passed down from the ancestors" and "family unique", trade secrets have been established since ancient times.

The ceramics, silks, and ironware of ancient Chinese society sell well overseas, and the technological achievements of these products also mostly reflect the trade secrets passed down from generation to generation.

　　"In the past, even if the law did not declare the protection of trade secrets, market entities would take confidential measures, which allowed trade secrets to be protected in fact. With the development of the economy and society and the progress of the law, the protection of trade secrets has become increasingly strict." Cui Guobin, deputy dean of the University School of Law pointed out.

　　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 protected by the right holders.

In today's society, everything from product formulas, production processes, experimental data, technical drawings to customer lists, supply information, and purchase prices involves trade secrets.

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

　　"In the pattern of intellectual property protection, trade secrets are the core and most competitive intangible wealth of enterprises." Ma Yide, a representative of the National People's Congress and a professor at the School of Public Policy and Management of the University of Chinese Academy of Sciences, pointed out that statistics from well-known American consulting institutions show that About 60% of the innovations of current technology companies first existed in the form of technological secrets.

　　Cui Guobin also believes: "Many high-tech companies value trade secrets very much. For example, the chip industry mainly relies not on patents but on trade secrets to protect their innovations."

　　Both patents and trade secrets can protect technological innovation. What is the focus of each?

"To obtain protection, a patent must undergo strict application and review procedures, and be disclosed to the public once authorized. Regardless of whether it is technical or business secrets, as long as confidential measures are taken to prevent the public from accessing it, they can be protected. And protected There is no time limit, and the maximum period of patent protection is only 20 years.” Cui Guobin explained, “For many high-tech enterprises, if they think that the possibility of their technological secrecy is not very successful, the products are easily affected in the market. If you copy it, you will apply for a patent. If you are more confident that you can keep the core business secrets, you may not be willing to disclose it."

Technical information has gradually become a hot area of ​​infringement of trade secrets

　　"From Shanghai thousands of miles to Guangdong, I used to travel and sightsee to cover my eyes, disguised and mixed into the scene, evaded chase and hid in the woods, drove in a panic into a ditch..." At the end of June 2020, an article published by the Guangdong Higher People's Court disclosed that Liu Mo, the person in charge of the technical team of an energy company, committed a criminal act of stealing the trade secrets of competitors.

The tense and exciting scenes are comparable to the blockbuster spy wars in theaters.

　　The recent report on the enforcement of the Anti-Unfair Competition Law issued by the Standing Committee of the National People's Congress shows that in 2019, prosecutions prosecuted for infringement of trade secrets increased by 51.9% year-on-year.

According to statistics, since the enforcement of the Anti-Unfair Competition Law, market supervision departments across the country have investigated and dealt with more than 1,000 trade secret infringement cases.

At the same time, more cases of infringement of trade secrets are reflected in civil cases.

　　The relevant person in charge of the Price Supervision and Anti-Unfair Competition Bureau of the State Administration for Market Regulation said that before the "13th Five-Year Plan", trade secret infringement cases mainly involved business information such as customer information and management data.

With the continuous development of the economy, as well as industrial and technological changes, the innovative activities of enterprises are becoming more and more active. The types of trade secrets violated are more technology-related structures, raw materials, formulas, materials, samples, patterns, computer programs, and algorithms. , Data and other technical information.

　　In practice, it is not uncommon for company employees and former employees to disclose and violate trade secrets.

In some local courts, such cases can account for more than 90% of the total number of trade secret cases.

In recent years, companies such as Huawei, Haier, and Laoganma have all experienced leaks of secrets by leaving employees.

　　"Infringement of trade secrets involves civil liability and administrative responsibility, and at the worst, it constitutes a crime of infringement of trade secrets and must bear criminal liability." Cui Guobin pointed out, but from the perspective of the owner of trade secrets, "rights protection is still relatively difficult and somewhat helpless." .

　　From 2018 to 2020, the State Administration for Market Regulation will carry out special operations across the country, requiring the focus to investigate and deal with violations of trade secrets and other violations of intellectual property rights.

　　"From the results of case handling, there are many complaints and reports, but few administrative penalties are ultimately imposed." The relevant person in charge of the Price Supervision and Anti-Unfair Competition Bureau of the State Administration for Market Regulation said that trade secret cases have high standards of evidence determination and professionalism. Because of its strong characteristics, the handling of cases often faces problems such as difficulty in obtaining evidence and difficult characterization.

In the process of case handling, some cases were transferred to judicial procedures, and some cases were settled by the parties.

Build regulatory synergy to protect trade secrets

　　In recent years, with the increasing calls for the protection of trade secrets from all walks of life, my country's legal construction of trade secret protection has entered the fast lane.

　　In 2017 and 2019, the Standing Committee of the National People's Congress revised the Anti-Unfair Competition Law twice to further improve the definition of trade secrets, clarify the circumstances of infringement of trade secrets, expand the scope of the infringement of trade secrets, and further strengthen the infringement of trade secrets. Legal liability.

　　In order to accurately implement the revised Anti-Unfair Competition Law, the State Administration of Market Supervision overhauled the 25-year-old Regulations on Prohibition of Infringement of Trade Secrets in 2020, and solicited public opinions.

According to reports, after fully absorbing and adopting relevant opinions, the "Provisions on the Protection of Trade Secrets (Draft for Review)" has been formed, and a more complete administrative regulation on the protection of trade secrets is ready to be published.

　　In August 2020, the Supreme Law issued a judicial interpretation on the protection of trade secrets.

Relevant persons in charge of the three civil divisions of the Supreme Court introduced and explained the provisions on behavior preservation, confidentiality obligations, and tort liability for key points such as evidence, rights protection costs, and infringement costs.

At the same time, specific provisions have been made for the unawareness of the public in the trial practice, the corresponding confidentiality measures, the determination of confidentiality obligations, and the protection of trade secrets related to employees and former employees.

　　As a representative of the National People's Congress, Ma Yide proposed at the National People's Congress in 2019 to speed up the formulation of a special law on the protection of trade secrets in order to comply with the international legislative trend of strengthening the protection of trade secrets, optimize the legalized business environment, and maintain national economic security.

　　"Trade secrets involve many points and areas, complex rules, and their importance is not inferior to patents." Cui Guobin also pointed out that the current regulations on the protection of trade secrets are relatively scattered. If there is a more systematic and specialized legislation, the right ownership of trade secrets, The regulation of infringement rules, rights restrictions and remedies will greatly strengthen the protection of trade secrets and promote the development of high-tech industries with higher investment risks.

　　Under the long-term goals, how to strengthen departmental collaboration and enhance the joint supervision of supervision has been put on the agenda.

The relevant person in charge of the Price Supervision and Anti-Unfair Competition Bureau of the State Administration of Market Supervision stated that the effective connection between administrative law enforcement and criminal justice will be strengthened, and the mechanism for finding clues of illegal activities, the mechanism of case transfer, and the mechanism of consultation and consultation will be improved.

At the same time, we will innovate the protection mechanism of trade secrets, and on the basis of continuing to encourage localities to strengthen the construction of trade secret protection bases, establish a national trade secret protection base to move the trade secret protection barrier forward.

(Reporter Jin Hao Chen Chen)