A Study On The Legal Problems Of Secrecy In Business Secrets

The judgment of cases relevant to the business secret is always a big puzzle in judicial practice of the intellectual property right for it’s the previous question to be solved for the case judgment. That is, as for the affirmation of business secret, there is no explicit substantive law and procedural law basis. The affirmation of business secrete is not the same as that of trademark, patent and copyright. For trademark and patent, the registration is taken as the main basis for obtaining and asserting the right. For the copyright, it’s generated automatically. That is, the copyright will be generated naturally so only the creative work is completed. However, for it refers to the information that is not open to the public, the affirmation of business secret could be affirmed through complicated program and certification, but some of these certification contents are objective and subjective. Therefore, they are not of certainty and accuracy.As for operation secret, the important constituent part of the business secret, it’s harder to affirm it in the judgment practice for the operation information is the peculiar information for each industry and is not open to the public. How to judge this information is of commercial value and not familiar to the public is pretty difficult. For it, there is no certain standard. In the judicial practice, the cases of infringing operation secret are usually discussed by centering on secrecy, commercial value, rational confidential measures and fair competition.The author, through sorting of and study on relevant data, finds that there are mature regulations of statute law and judicial practice operation rules about relevant theories of operation secret in America. However, there is no systematic theory formed in China. Its relevant studies are also still based on especially sorting of written regulations of American business secret law, observation and analysis of the dynamic development of the judicial practice at abroad, and it fails to combine the China’s judicial practice and relevant legal systems. Though these "foreign goods" theories impose influences on China’s judicial practice to certain extent, it still is not completely able to localize and guide judgment practice well. This study, by beginning with the study on Chinese and American cases and through comparison of the written regulations of the business secret laws of China and America, observation and analysis on dynamic development of judicial practice, seeks after and concludes the conditions for affirming operation secret, and also summarize and conclude some useful practical affirmation methods based on this to provide reference or enlightenment for solutions to disputes about operation secret in the judicial practice in China. This paper includes four parts. The introduction part draws forth the topic. The content of the Chapter1indicates mainly confirming the protection scope and constitutional conditions of business secret through case analysis, sorting of and introducing the relevant written regulations of business secret in China and America. The Chapter2analyzes the object of business secret protection namely right attribute and also implements comparative analysis on similarities and differences of technical and operation secrets. The Chapter3reaches the conditions for affirming operation secret through case analysis and observation into the statute law:that not familiar to the public, commercial value and rational confidential measures. The Chapter4, by combining the practical operations, introduces the common two methods for affirming operation secret:judicial authentication and business assessment.