How to protect business secrets when talents move
Article 22 of my country’s Labor Law It stipulates: “The parties to a labor contract may stipulate in the labor contract relevant matters concerning the confidentiality of the employer’s business secrets.” Therefore, the employer may enter into a confidentiality contract with relevant personnel in the labor employment contract, intellectual property rights ownership agreement or technology confidentiality agreement. Using contracts to protect trade secrets is a better option. Because when the employer files a lawsuit for infringement of trade secrets based on the employment contract, the employer has a confidentiality contract signed with the defendant. The contract has stated the name, scope and other terms of the trade secret. In the lawsuit, the employer only relies on The contract itself can prove that the defendant already knows that specific information is the plaintiff's trade secret, and promises to assume corresponding confidentiality obligations and liability for breach of contract. This makes the user's proof work relatively easy and the possibility of winning the lawsuit increases.
On the contrary, if there is no protection of trade secrets in the contract To make an agreement, since the definition of trade secrets in the Civil Code, Anti-Unfair Competition Law, Criminal Law and other laws is general, during the trial of the case, whether a certain information is a trade secret, the employer, the infringer and the The court may have different understandings. Who can win the case, the employer or the infringer, mainly depends on the extent to which the evidence cited by both parties can support their claims and be accepted by the court. becauseHowever, it is much more difficult for a company to win a lawsuit.
1. Who should the company sign confidentiality contracts with? .
Companies generally do not need to enter into confidentiality contracts with all personnel. Mainly include relevant administrative personnel, scientific and technological personnel and other people who may have access to corporate trade secrets that have an important impact on the technical rights and economic interests of the unit. They mainly include: (1) Senior research and development personnel, technical personnel, and operation and management personnel. Because they possess the company's core business secrets, they easily attract the special attention of competing companies. (2) General technical personnel and technical workers in key positions. Due to work requirements, they may know some important business secrets or confidential information, and they do not rule out the possibility of leaking secrets. (3)Marketing plans and sales personnel. These people often possess business secrets and are also the focus of competing companies' attention. (4) Accounting personnel. Because the financial status of a company contains a large amount of information that should not be made public. (5) Secretarial staff. They will be exposed to trade secrets in the process of participating in meetings, managing and distributing documents. (6) Security personnel. Such personnel have the opportunity to study, photograph, and copy relevant confidential equipment and documents after get off work or on public holidays and holidays when others are not around.
2. Method of signing a confidentiality contract.
There are two ways for companies to sign confidentiality contracts with employees . First, the company directly signs an "Agreement on Keeping Trade Secrets" with employees who have access to trade secrets. There are several points to pay attention to when signing an agreement: first, the content of the agreement must not violate national laws, regulations and relevant rules and regulations; second, the legal status of both parties must be equal, the principle of voluntariness must be used, and the expressions of intention of both parties must be true , rights and obligations must be equal; third, the main content must be complete; fourth, liability for breach of contract must be clear. Second, the company must specify confidentiality clauses and liability for breach of contract in the "employment contract" or "labor contract" signed with its employees.
3. What should be included in the confidentiality contract.
First, the scope, confidentiality period, and The rights and obligations of both parties (especially the confidentiality obligations of employees), responsibilities for breach of confidentiality agreements, etc. Business secrets of enterprises usually include: product documents, program software, product formulas, production processes, production know-how, customer lists, production and marketing strategies, products Costs, base bids, tender documents and other information that is not willing to be disclosed. Second, it should include non-competition contracts (clauses). Non-competition contracts, also called "non-competition contracts", are a method often used by employers in developed countries to constrain the behavior of their employees. A type of labor contract or a clause in a labor contract. In China, in many industries and enterprises with high technical content, such as the IT industry, it is also common for employees to sign non-competition contracts with the company when they take up their jobs. Non-competition contracts usually include The following terms: (1) Employees shall not take part-time jobs or hold positions in competing companies during their employment; (2) Employees shall not organize their own companies to compete with the original employer during their employment; (3) Employees shall not snatch customers of the original employer before leaving their jobs; (4) Employees are not allowed to induce other employees to resign; (5) Employees are not allowed to carry out business that competes with the original employer or be employed by a competing company within a certain period of time (usually three years in foreign countries) or within a specific area after resignation.
2. Enterprises can take economic measures to protect business secrets.
The first is to protect business secrets with generous treatment. That is, for contacts Employees who use corporate trade secrets, especially senior managers, should be given relatively generous wages, bonuses, and allowances. At the same time, it should be stated in the labor contract that once they enjoy special allowances, they should have corresponding confidentiality obligations. The second is based on labor Long-term contracts are used to protect business secrets. Today, when employee turnover is relatively common, this method plays an even more important role. Long-term labor contracts can enable employees in key positions (with access to and mastery of business secrets) to be motivated by the expectation of long-term benefits. Stay in your job. The third is to protect business secrets by attracting shareholders.
That is, the inventor of the trade secret is allowed to have access to, Those who master trade secrets own part of the equity and become shareholders of the enterprise, forming a community of shared destiny with the enterprise. Many small and medium-sized enterprises in Japan often employ employees who master and engage in key technologies and processes for life, or directly absorb them as shareholders of the enterprise. The purpose is to prevent the loss of talent and the leakage of trade secrets. Some high-tech enterprises in our country have already begun attempts in this regard.
3. Enterprises should establish and improve a trade secret protection system .
First, establish a protection agency for trade secrets. Although commercial secrets and state secrets are at different levels, their protection requirements, institutional measures, prevention methods, publicity and education, etc. are generally similar. Therefore, state secrets and commercial secrets can be brought into unified management and treated separately. If there is an existing agency to manage state secrets, it can be tasked with the dual tasks of managing state secrets and commercial secrets. However, the prerequisite for this is to strengthen the power of confidentiality agencies. At present, some state-owned enterprises have begun attempts in this area. Their main methods are: clarifying that a major enterprise leader is responsible for the overall work of the confidentiality committee; increasing the proportion of administrative business department leaders among the members of the confidentiality committee; clarifying that full-time personnel who understand technology and general business are responsible for the daily management of commercial secrets.
The second is to establish an internal confidentiality system within the enterprise. The national confidentiality department has promulgated a series of systems for protecting state secrets. They are confidentiality behavioral norms proposed for various leakage channels. Many of them are suitable for the management of commercial secrets. Enterprises can choose, enrich and formulate them according to the different characteristics of commercial secrets. Develop a management system that conforms to the operating rules of commercial secrets. Once we have rules and regulations, we must also pay attention to strengthening publicity, education and inspection and supervision to prevent failure to follow the rules and become a mere formality. Through publicity and education, employees should enhance their moral concepts, legal concepts, sense of responsibility and belonging, and establish the consciousness of protecting business secrets. At the same time, the management of trade secrets should be incorporated into the basic management system of the enterprise.system, changing empirical management into quantitative and qualitative target management. Internally, the confidentiality responsibilities of leaders at all levels should be clarified, the specific contents of trade secrets in each business system should be demarcated, trade secret management should be included in the assessment system as a sub-item of basic enterprise management, and leaking units and responsible persons should be punished in accordance with regulations ; Externally, establish a rapid response mechanism after trade secrets are infringed to ensure that losses after trade secrets are infringed are minimized.
The above is how companies can protect their trade secrets The measures taken include signing non-competition agreements with technical personnel, signing trade secret protection agreements with general employees, etc. At the same time, the company itself must establish and improve a trade secret protection system. If your trade secrets are unfortunately stolen by others, you must call the police promptly and then use legal channels to defend your legitimate interests.
The above is the relevant knowledge compiled by the editor for everyone , if your situation is more complex, the Legal Savior Network also provides online lawyer consultation services, and you are welcome to seek legal consultation.