On the international protection of trade secrets（在国际商业秘密的保护）

1、 On the international protection of trade secretsPaper Network: Abstract: In the 21st century, the tide of knowledge economy under the impact of trade secrets as a transferable technical information and management information, along with international trade position improved, as well as a major trad

2、e partner. International transfer of technology know-how , business secret protection as part of the countrys strong desire to coordinate a global or regional international conventions have emerged. To narrow differences and reduce conflicts of interest, the coordination of national trade secrets pr

3、otection system has become the goal of international community and internal needs and the current Chinese legal protection of trade secrets, basic system, but Chinese trade secret protection in terms of legislation or law enforcement are still many problems studied in depth. to the international pro

4、tection of trade secrets as the starting point, triggering improve Chinas trade secret protection system thinking. Keywords: trade secrets, international protection, protection principles First, the international protection of trade secrets based on technology developed for the content of the inevit

5、able result of international trade The earliest case of trade secret protection in the mid-19th century United States and Britain and other countries, half of the 20th century, the internationalization of trade secret protection there, the trend of globalization, the World Trade Organization TRIPS A

6、greement on the definition of trade secrets put this trend climax, marking the trade secrets has been included as an independent international intellectual property protection system. International protection of intellectual property is based on knowledge of the content of international economic rel

7、ations to reflect the particular stage, the system of international protection of trade secrets is more directly dependent on the establishment of international economic and technological development, based on the content of international trade, technology development for the inevitable. trade secre

8、ts as a transferable technical information and management information, along with international trade position improved, as well as a major trade partner. years ago, statistics show that a simple transfer of technical secrets 30% of the total trade volume , a patent license with technical secrets ab

9、out 60% business, management secrets are increasingly valued by business and become an important international trade or investment objects 1 Moreover, the accelerated pace of technological upgrading and to promote international the flow of technology to speed up the frequency, the total increase, ac

10、cording to statistics, 90% of new products to market other products less than four years will be replaced, shortened product life-cycle technology is the root cause of shortening the replacement cycle, and technology life cycles shorten to promote technology transfer and the international exchange r

11、esult, the international technology transfer in the technical secrets, business secrets protection as part of the countrys strong desire to coordinate a global or regional international conventions have emerged. International protection of trade secrets is also sovereign state of its compliance with

12、 international intellectual property treaties of international obligations set by the domestic legal system to achieve trade secrets. The world, the great difference in productivity levels determine the differences between countries in the protection of trade secrets, technology secrets and business

13、 secrets in the flow between the different countries will make the difference between the real interests of the country into the conflict for a country with more trade secrets, its secret technology, management information is not protected or adequate protection, is the damage to national interests,

14、 but for a country with few trade secrets, if they protect the secret of the major foreign technology, management information, but also damage to national interests, are the two damage national system of trade secrets from the differences between then and narrow the differences, reduce conflicts of

15、interest, the coordination of national trade secrets protection system has become the goal of international community and internal needs, the need to promote trade secrets within the international system of protection established the main driving force. 1960 International Chamber of Commerce (ICC th

16、e relevant documents and <<the Convention establishing WIPO>> are different ways that trade secrets can be included in the international protection of intellectual property given .20 After the 1990s, there Many international legal documents devoted to the system of legal protection of tr

17、ade secrets, mainly Sino-US IPR Memorandum of Understanding with the Japan-US Memorandum of Understanding on Intellectual Property Rights, the World Trade Organization TRIPS Agreement, the North American Free Trade Agreement and the World Intellectual Property Organization Against Unfair Model Law o

18、n Competition which is the most prominent TRIPS Agreement. TRIPS Agreement not only the concept of trade secrets, the constituent elements, and other types of infringement to make clear that, and it was the object of trade secrets and other intellectual property in parallel, as the second agreement

19、Part VII of the independent content. TRIPS Agreement Article 39 the provisions of trade secrets can be summarized in three points: First, the agreement defines the overall trade secrets and trade secret laws of intellectual property rights as a property, the second , Article 39, paragraph 2, clearly

20、 the trade secrets of the constituent elements, namely, confidentiality, and legal control of the business value of information to take reasonable security measures. Third, Article 39, paragraph 3 is devoted to the government or government agencies to submit medical or agricultural chemical products

21、 related to data protection. Second, trade secret intellectual property is the theoretical basis for the international protection In recent years, scholars from various countries on the legal protection of trade secrets, the theoretical basis for in-depth study, a variety of theories and doctrines,

22、including trust, the contractual relationship, said, property rights, the quasi-property, said, property value, the relative said property, Anti-Unfair Competition, said, and corporate right to say, etc., and various theories have largely acknowledged is essentially a commercial secret information h

23、as to meet the peoples living information and development of properties, and this property and people associated with the main demand, therefore, information has value, is an intangible property of value of trade secrets is that its holders can compete in the market to bring the interests of a parti

24、cular property or a competitive advantage. Whether intellectual property rights for the areas of trade secrets, in theory, also remains controversial. Deniers that proprietary, regional and timing are the basic characteristics of intellectual property rights, and trade secrets are the basis for its

25、existence secret, apparently trademarks and patents do not have that kind of regional and timing the same time, does not have a proprietary trade secret rights, rights of people can not lawfully exclude others or use trade secrets obtained Endorses who were in favor, proprietary intellectual propert

26、y rights can not be nature of regional and temporal absolute. trade secrets is an intellectual achievement, and trademarks, patents, and there is no essential difference between works, trade secrets included in the protection of intellectual property is not inappropriate. With the intellectual prope

27、rty rights theory and practice of continuous development, trade secret is a special law should be adequate and effective intellectual property protection has become a consensus view, and has been the national legislation and international conventions accepted. Because of this, the WTO TRIPS Agreemen

28、t clearly attributable to the commercial secrets of intellectual property areas. The author believes that the international protection of trade secrets, so its theoretical basis is the nature of trade secrets, intellectual property, grounds 1. The object of trade secrets and intellectual property ri

29、ghts of non-material objects with identity in the institutional system in the civil rights, intellectual property and traditional reason to distinguish the ownership of property exists, because the object of intellectual property is a knowledge product, the object non-material (intangible nature of

30、intellectual property rights of the property, rights and property ownership is the most fundamental difference. the object of trade secrets - trade secrets is an intangible, valuable information, which meet the characteristics of patents technical secrets and proprietary technology is essentially no

31、 different from the sense, trade secrets, legal system and the patent system is a legislator for the same type of object - valuable information or technical solutions adopted two different protection, but also for the both as a trade secret as proprietary technology or know-how in terms of the progr

32、am, what what means of protection, the rights of people of their choice, of course, not all are equipped with patented technology, trade secrets, the characteristics of those In the novelty, inventiveness than on the technical information required by the patent, patent protection, though not with th

33、e conditions, but can not deny its non-material objects. As for trade secrets in the business information is also invisible, in line with the nature of intellectual property property. 2. Exclusive right of trade secrets, proprietary is relative.s Core proprietary property rights. Proprietary nature

34、is the most basic features of traditional intellectual property. Trade secrets do not have the strict sense of the proprietary, non-rights holders the right to exclude others to use the same legal means to acquire or trade secrets, but this does not mean that trade secrets will not have exclusive ri

35、ghts as long as the trade secret rights of people to keep a secret, which is in fact a proprietary trade secret status, but This proprietary state to maintain more of a right to rely on peoples own security measures. And compared to other proprietary intellectual property, proprietary trade secret c

36、an exist in two states, namely, the absolute and relative exclusive monopoly. A technical or business confidential information, not legal means to get others to before, a de facto exclusive rights, this exclusive right is absolute, while others, when trade secrets are obtained legally, its exclusivi

37、ty is relative, there also have the same most of the main contents of the status of trade secrets in fact other proprietary intellectual property rights is not absolute, as the balance between individual interests and social public interests, rights of intellectual property law in giving people the

38、knowledge of their products enjoy exclusive rights, they also give people the right to various statutory restrictions, such as the patent system. exhaustion of rights principle, compulsory licensing system; of copyright law in the fair use , statutory license proprietary intellectual property rights

39、 and so reflects the relative. 3. Trade secret rights of regional and temporal. Some scholars believe that, trade secret without geographical and time constraints, trade secrets, confidentiality rights of the state to determine their geographical coverage and duration. I believe that this argument h

40、as a rational factor , but it reflects only the appearance of trade secrets, in essence, no rights are conferred by state law, the rights acquired in one country only in the geographical area protected by law, trade secret rights, of course no exception in a countries to develop the trade secret pro

41、tection laws and regulations before the trade secrets in this country is not protected, it only shows that there is a regional trade secret, otherwise there would be no need for trade secret protection or the conclusion of the relevant international conventions, TRIPS Article 39 agreement there is n

42、o longer necessary. Links to free download As for the timing of trade secrets, we know that regardless of any patent, trademark or for the right, have a statutory term of protection, while the timing of trade secrets is not required by law, but through the right to take security

43、measures to maintained, so trade secret life depends on the length of the right to take the effectiveness of security measures as long as not leak, the interests of rights holders to be protected by law, only when the more advanced technological processes, the new formula appears, the existing prote

44、ction of trade secrets will lose the value of trade secrets will no longer exist. Therefore, a certain sense, there are time-sensitive trade secrets, but the law does not make them uniform mandatory. In summary, the three of intellectual property rights that exclusive, regional and timing are reflec

45、ted in different levels of trade secrets, commercial secrets is clearly the intellectual property of a family from intellectual history of the formation and development, intellectual property itself is an open system, with the social and technological development, there are always new areas of intel

46、lectual property rights and their integration into the object. Third, Chinas trade secrets law and improve measures to protect the status quo 1. Analysis of Chinese legal protection of trade secrets in Chinas system of legal protection of trade secrets started in the 1980s, as a legal term, trade se

47、crets first appeared in the Code of Civil Procedure>> 66 and the provisions of section 120, but the law on the meaning and scope of trade secrets did not make clearly defined. <<Supreme Court on the use of PRC Civil Procedure Law number of views on>> requirements, trade secrets, ma

48、inly refers to the technical secrets, business intelligence and information etc., such as the production process, formula, trade links, the parties do not want to open sales channels of trade secrets. 1993, Anti-Unfair Competition Law>> first defined in legislation, trade secret meaning: this

49、Act said trade secrets, is not known to the public, can bring economic benefits for the right person, with the practicality, and the right to take security measures, technical information and management information. This definition is basically on the connotation and extension international trends t

50、o maintain a consistent legal protection of trade secrets, Chinas current basic system, involving the main law <<Anti-Unfair Competition Law >>,<< >>,<< Civil Procedure Law Contract Law >>,<< >>,<< >>,<< Criminal Law Labor Law>>

51、 and so on, where <<Anti-Unfair Competition Law>> Elements of trade secrets, infringement and legal responsibility to make a clearly defined, the legal system constitutes a trade secret the core. Nevertheless, Chinas protection of trade secrets or law enforcement in terms of legislation

52、there are still many problems to be studied in depth (1 fragmentation of legal norms, poor operability of China involving trade secret protection laws are unfair competition law , civil law, contract law, company law, labor law, criminal law, they are each from a different point of view to provide f

53、or protection of trade secrets, the result not only in the lack of legislation to protect trade secrets of the overall architecture and interface with each other, and provision is too principle, infringement of trade secrets is not conducive to legal regulation (2 Elements of trade secrets are too s

54、trict. Anti-Unfair Competition Law expressly requires commercial secrets should be a practical than the TRIPS Agreement, this provision constitutes a trade secret more stringent requirements, as Mr. Zheng Chengsi said: In the field of trade secrets, protected information is not qualified practical r

55、equirements, the TRIPS Agreement expressly provided. (3 existing legal gaps in some areas, such as does not provide for the protection of the government or government agency to provide trade secrets (4 employees or employees of the trade secrets act against the lack of clear standards of civil liabi

56、lity, resulting in practice due to quit and caused frequent occurrence of violations of trade secrets (5 lack of procedural requirements. violation of trade secrets cases, there are many special proceedings, such as the burden of proof, the level of jurisdiction, whether through arbitration, how to

57、ensure that trade secrets are not leaked in the proceedings, etc., existing laws and regulations were not requirement (6 for violations of trade secrets is not enough to combat acts of investigation in recent years, the National Court involving infringement of trade secrets infringement cases every

58、year to 150% growth rate. The reason is that many, such as administrative ban, ban of Justice regulations was more of a principle, the ban conditions, type, etc to make the ban does not provide the time, leading to administrative and judicial difficult to operate, even complaints without trial, the

59、trial without making judgments, but not sentenced to the phenomenon. 2. Improve Chinas trade secret protection system thinking. The development of special protection of trade secrets law is an inherent requirement of socialist market economy. To use legal means to protect trade secrets, not only to maintain fair and orderly market competition order of need, but also in the market competition in the surviv