What are the basic characteristics of trade secrets?

The premise of Trade secrets is that they are not known to the public, while other intellectual property rights are public, and patent rights even require disclosure to a considerable extent. The proprietary nature of trade secrets is not absolute or exclusive. It can enable operators to obtain benefits, obtain competitive advantages, or have potential commercial benefits. The protection period of a trade secret is not statutory and depends on the confidentiality measures taken by the obligee and the disclosure of the secret by others. Regarding the questions about the basic characteristics of trade secrets, the editor of Legal Savior Network will give you detailed answers below.

1. What are the basic characteristics of trade secrets

1. Non-publicity sex. The premise of trade secrets is that they are not known to the public, while other intellectual property rights are public, and patent rights even require disclosure to a considerable extent.

2. Non-exclusive. Trade secrets are a relative right. The proprietary nature of trade secrets is not absolute or exclusive.

3. Interest-related. It can enable operators to obtain benefits, obtain competitive advantages, or have potential commercial benefits.

4. Protection period. The protection period of a trade secret is not statutory and depends on the confidentiality measures taken by the obligee and the disclosure of the secret by others.

5. Legal basis: "Anti-Unfair Competition Law"

Article 9 Business Persons shall not commit the following acts of infringement of trade secrets:

(1) Obtain the right holder's rights through theft, bribery, fraud, coercion, electronic intrusion or other improper means Trade secrets;

(2) Disclose, use or allow others to use the right holder’s trade secrets obtained by means of the previous paragraph;

(3) Violating confidentiality obligations or violating rights holders’ requirements to keep business secrets, disclosing, using or allowing others to use business secrets in their possession;

(4) Instigate, induce, or help others to violate confidentiality obligations or violate the obligee's requirements for keeping commercial secrets, obtain, disclose, use or allow others to use the obligee's informationTrade secrets.

Any natural person, legal person or unincorporated organization other than an operator who commits the illegal acts listed in the preceding paragraph shall be deemed to have infringed upon business secrets.

The third party knowingly or should have known that an employee, former employee or other unit or individual of the right holder of a trade secret has committed an illegal act listed in paragraph 1 of this article, still obtains , disclose, use or allow others to use the trade secret, it shall be deemed as a trade secret infringement.

Trade secrets as mentioned in this Law refer to technical information and business information that are not known to the public, have commercial value, and for which the obligee has taken appropriate confidentiality measures. and other business information.

2. How to calculate the loss of trade secrets

(1) The calculation of loss of trade secrets can be roughly divided into the following two types:

1. The losses suffered by the trade secret right holder due to infringement shall be the basis for conviction, sentencing and actual compensation. All calculable losses in property and income of the trade secret right holder shall be regarded as the amount of loss. This includes both the right holder’s own income and the right holder’s expected income within a number of years. The main factors to consider are: the investment in the development of the trade secret, the maturity level of the trade secret, the utilization cycle of the trade secret and whether it can be reused, as well as the use and transfer of the trade secret, the supply and demand situation of the market, etc.

2. The amount of loss and compensation shall be based on the benefits obtained by the infringer due to the infringement. The calculation of this loss is based on the premise that the infringer has not disclosed or transferred it to a third party and has not made it known to the public. If a trade secret is illegally sold to others, the income from the illegal sale shall be the amount of loss; if a trade secret is illegally used for production and business activities, the profit gained or increased shall be the amount of loss.

(2) Legal basis: Article 20 of the "Anti-Unfair Competition Law of the People's Republic of China", where an operator infringes on business secrets and causes damage to the right holder , should bear the liability for damages;

(3) In judicial practice, the losses of the trade secret right holder are often difficult to calculate, and the courts usually use the profits obtained by the infringer. as a basis for refereeing. When calculating the profits gained by the infringement due to infringement during the infringement period, sales cannot simply be used as the profit amount, nor canThe profit amount is calculated by multiplying the total price of the products produced by the average profit rate. Under normal circumstances, it is more appropriate to multiply the sales volume by the average profit rate. The losses of the trade secret right holder include losses already suffered and losses that must be suffered, that is, direct losses and indirect losses, while the profits of the infringer are actual profits and do not include expected profits. However, considering that there is a possibility rather than a certainty that a transaction between a trade secret right holder and an actual or potential customer can be concluded, risks in transactions are always present.

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