Brief Analysis On Improvement Of Calculation Rules Of Trade Secrets Damages: From U.S. Legal Experience

Trade secrets have been a key target of competitive practice in modern market, while its value is recognized gradually. The legal experience shows that calculation of damages is of both significance and difficulty in tort action of trade secrets. It is mainly because there are defects lying in calculation rules of trade secret damages.In theory, the calculation rules of trade secret damages include three aspects: the calculation methods of damages, the additional rules of calculation methods, and the rules of proof in calculation of damages. The combination of these aspects may help the court to find the facts in the tort action of trade secrets, and make a reasonable conclusion of damages. This is also the legal experience of the United States. In contrast, China’s calculation rules of trade secrets damages are too general to provide clear guidelines for the trial practice. Firstly, the existing rules do not involve the content of each calculation method, as well as the applicable conditions and prohibitions. Secondly, because lack of punitive damages, it is nearly impossible to prevent the recurrence of tort with malice. Lastly, the owners of trade secrets usually could not provide sufficient evidence to show the damages under the current rules of proof. The three aspects above are the defects lying in calculation rules of trade secrets damages. And the improvement of calculation rules of trade secrets damages also focuses on these aspects. The improvement on calculation rules of trade secret damages is of significance. According to theory of trade secrets, it could adjust the order of competition, maintain the business ethics and carry out the legislative purpose of trade secret law.