Research On The Identification Of Corresponding Confidentiality Measures Of Trade Secrets

In recent years,disputes over infringement of trade secrets have increased year by year,and high-tech enterprises have become the hardest hit.Trade secrets are the core competitiveness of enterprises.In most disputes against trade secrets,whether"corresponding confidentiality measures" are taken becomes the focus of disputes among both parties.For the healthy development of intellectual property economy,China has made amendments to the anti-unfair competition law and the judicial interpretation involving trade secrets,constantly improving the standards for identifying trade secrets.In practice,some enterprises have a weak sense of confidentiality,neglect the protection of their trade secrets,and only use internal confidential documents or sign confidentiality agreements with employees as confidentiality measures.The requirements of law and judicial interpretation are difficult to be recognized as the corresponding confidentiality measures stipulated in the anti unfair competition law.The obligee’s adoption of corresponding confidentiality measures is one of the legal constituent elements of trade secrets.According to the case law in recent years,China’s identification of confidentiality measures is more and more strict.If the enterprise’s confidentiality measures do not meet the conditions,or the trade secrets cannot be identified,it will face the consequences of infringement of trade secrets and huge economic losses.In serious cases,it will lead to the decline of market share and of enterprise competitiveness.In view of the above problems,this essay focuses on the identification of confidentiality measures,analyzes the problems and tries to put forward suggestions.This essay is divided into three parts:preamble,text and conclusion.The preamble elaborates on the background and significance of the article,and sets the tone of the whole article.The text presents some problems in the determination of trade secret confidentiality measures,analyzes the reasons for the prevalence of the problem,and proposes suggestions to solve these problems on the basis of comparing Chinese and foreign practice.The concluding section summarizes the analysis of the main text and concludes with the key points.The following is a summary of the four chapters in the main body of the paper:The first part puts forward the relationship between taking confidentiality measures and trade secrets,and summarizes the basic situation of trade secret confidentiality measures.This part expounds the theoretical basis,legislative evolution and theoretical classification of confidentiality measures,reveals the changes of confidentiality measures over the years,and finds the changes and trends of the identification of confidentiality measures.At the macro level,it describe the categories and functions of confidentiality measures,the effects on the confidentiality needs of enterprises,and summarizes the characteristics and differences of confidentiality measures in different historical stages.The second part discusses the current situation and existing problems of the identification of confidentiality measures in China.This part is mainly about the analysis of practical cases,which sorts out the most representative typical cases of the Supreme Court’s determination of corresponding confidentiality measures so far.It also summarizes and classifies the judgment reasons and results in the judgment,in order to intuitively and clearly show the way of determination of confidentiality measures,so as to be used as valuable case data statistics.The third part analyzes the origin,extraterritorial legislation and practice of confidentiality measures from the international level,and compares them with China’s relevant judicial systems,which including the legislation and practice of the United States on confidentiality measures,the legislation and application of Germany on confidentiality measures,and the confidentiality provisions of the World Trade Organization Agreement.One of the reasons and purposes of amending the unfair competition law and the judicial interpretation related to trade secrets in China is to meet the needs of international trade and the protection of intellectual property rights.Therefore,it is very important to study extraterritorial practice and make confidentiality measures meet the requirements of international treaties.The fourth part is the suggestions to solve the above problems.On the one hand,it is the suggestions on the identification standards of corresponding confidentiality measures in China.On the other hand,it is the suggestions on how to take corresponding confidentiality measures in line with the requirements of the anti unfair competition law.Firstly,the author puts forward the increasingly rigorous identification trend of corresponding confidentiality measures.Disputes against technical secrets pay attention to the nature of confidential information and its carrier.The external carrier has high requirements for external confidentiality measures.When "reverse engineering" is allowed,the confidentiality measures are required to be corresponding and equivalent,which can resist the reverse engineering of relevant personnel in the field.Enterprises should draw experience from this.The technical secrets carried by their products have higher requirements for confidentiality measures,and cannot generally use internal measures to protect external carriers.Secondly,it is suggested to adopt clearer standards on the"appropriateness" of confidentiality measures.There is no trade secret law in China,and the relevant provisions of trade secrets are scattered in laws and judicial interpretations.There is no appropriate standard to determine whether the confidentiality measures are reasonable or not,resulting in differences in judgment in practice.Therefore,it is necessary to adopt unified and clear standards.Finally,the direct beneficiary of trade secret protection is its obligee,most of which are enterprises.Therefore,it is suggested that enterprises should take the fight against "reverse engineering" and keep confidential internally with complete confidentiality system,confidentiality contract and physical measures.The legislative revision of the corresponding confidentiality measures of trade secrets and the introduction of judicial interpretation mean a new judicial determination standard and recognition mode.The protection of enterprise trade secrets should be combined with the changing standards and shoud formulate corresponding confidentiality measures that meet their own needs and the constituent elements of trade secrets according to the nature of confidential information carriers.