Supreme Court Judicial Interpretation: Reverse engineering to obtain trade secrets is "legal"

Trade secrets obtained through self-development or reverse engineering will not be considered as infringement of trade secrets under the relevant provisions of the Anti-Unfair Competition Law.

Yesterday, the Supreme People's Court issued the first judicial interpretation involving the trial of unfair competition cases that clarified the above rules.

It is understood that this rule was first established in the case of IBM v. Microsoft, and it is also the first time it has been clarified in China.

According to judicial interpretation, reverse engineering is defined as the use of technical means to disassemble, survey, map, and analyze products obtained from public channels to obtain relevant information about the product. Technical Information.

Rong Chao, a lawyer at Shanghai Tianwen Law Firm, told China Business News that this judicial interpretation clarifies the legality of reverse engineering and eliminates legal risks , which is conducive to my country's technological development.

"Technology needs to be learned. Japan started by learning European and American technology through reverse engineering, and then embarked on the path of development. China is just at this stage, and legislation needs to provide for economic development Real service." Rong Chao said.

However, in order to avoid the abuse of this clause, the judicial interpretation also stipulates: "After the party knows the trade secrets of others through improper means, it uses reverse engineering as an excuse to Any claim that the acquisition behavior is legal will not be supported."

On January 16, Tencent sued PICA (Personalized Information and Communication Assistant) for infringement and unfair competition. The case was heard for the first time in the Beijing No. 2 Intermediate People's Court. The case was based on the fact that PICA developed software that can be used to log into QQ on mobile phones. Based on this, Tencent believed that PICA infringed and claimed compensation of 5 million yuan.

Rong Chao explained that this case involves the issue of reverse engineering. "However, this explanation may not be applicable to this case yet. After all, this concept was first established in China and lawyers are not yet familiar with it."

In addition , this judicial interpretation confirms that the amount of damages for infringement of trade secrets stipulated in the Anti-Unfair Competition Law can be determined with reference to the method of determining the amount of damages for infringement of patent rights. For claims where the trade secret has become known to the public due to infringement, the amount of damages will be determined based on the commercial value of the trade secret. The commercial value of a trade secret is based on its research and development costs, implementation of the projectFactors such as the income from trade secrets, the benefits available, and the time that the competitive advantage can be maintained are determined.

Industry insiders believe that the above provisions are in line with the experience of judicial practice. Although some local courts followed similar rules before the rules came out, they were never "justified." This judicial interpretation makes the court's judicial activities more transparent and authoritative.

It is understood that this interpretation will come into effect on February 1, 2007.