Research On The Judgment Rule Of "Not Easy To Obtain" Trade Secrets

To determine whether the issued information is classified as trade secrets,it not only excludes the information which is in the public domain,but excludes the information which could be obtained by investing little effort.As such,the relevant statutes and regulations adopted by some countries and regions stipulate that the information qualified as trade secrets should be not readily ascertainable by proper means.However,these provisions do not provide the specific rules for not readily ascertainable.Since determination of readily ascertainable is heavily depended on the specific facts which may vary to the industries,it is necessary to determine the issue within the trial.Based on our judicial practice,however,there are several problems herein.Pursuant to the domestic and international theoretical researches and relevant legislative regulations,the mentioned issues are also discussed,which focus mainly on whether the information qualified as trade secrets should process the novelty,which factors should be taken into consideration when determining the novelty,etc.To better improvement of our judicial practice,thispaper,on a basis of the current regulations and judicial interpretation,analyses the Chinese courts’ and U.S.courts’ cases to extract and conclude the different opinions over the relevant issues.The First Chapter is about the status quo and shortages of the trade secrets’ “not readily ascertainable”,and to summarize the existing problems in the judicial practice of our country by analyzing the thoughts and methods when judges make the information difficulty judgment.The first section describes the judicial status quo of China’s trade secret "not readily ascertainable" judgment,to clarify the trial thoughts and rules which our courts apply to determine the ascertainment difficulty of technical information and business information,then to point out the shortages of the judicial status quo.The Second Chapter includes the analysis of rules for information which is not readily ascertainable.The first section is about the conception of the “readily ascertainable” and to make comparison between it and “generally known”;the second section is theoretical analysis of not readily ascertainable information,which mainly analyses the discussion of the rules for information that is not readily ascertainable information.In the Third Chapter,through the analysis and studies of the statute law and case law of the United States,to provides a comparison and reference for Chinese courts.The first section states the rules of “not readily ascertainable” in American statute law,which stipulate that trade secrets shall have novelty and the relationships between novelty and confidentiality.The second section states the United States courts’ requirements for the “at least minimum novelty” and application rules for the “not readily ascertainable” judgment of technical information and business information.For the requirements of “at least minimum novelty”,the court believes that the involved information only needs to meet the medium originality which can be distinguished from the public information;for the rules of “not readily ascertainable” judgment of technical information,the courts can take the reverse engineering into consideration,which means when people need to spend more time,manpower and resources to acquire the information through the reverse engineering,then the information can be defined as “not readily ascertainable”;for the rules of “not readily ascertainable” judgment of business information,the courts believe the specialty and development expense of the information can be reference factors.The Fourth Chapter is about the judicial perfection suggestions for our country’s “not readily ascertainable” which are suggested as follows:(1)to form the “not readily ascertainable” rules for different type of information respectively;(2)to indicate the “at least minimum novelty” through the judicial interpretation or laws.To be more detailed,for the “at least minimum novelty” requirements of technical information,we can take the following factors into consideration:(1)the whole combination of technical information or the information itself is created through creative labor,and cannot be easily discovered by the technical personnel in the relevant field;(2)the formation of the information itself or the whole combination of information is not by conventional means or methods;(3)compared with the present technology,the information has significant progresses.For the “at least minimum novelty” requirements of business information,we can take the following factors into consideration:(1)whether the business information includes something that hasn’t been in the public domain;(2)although the information is derived from the public domain,the whole information or its combination can be distinguished from the public information;(3)the economic cost to acquire the information;(4)whether the formation of information is the screen result of a tremendous amount of data.