The Research On The Determination Of The Secrecy Of Trade Secret In China

Legal norms protect trade secrets mainly through anti-unfair competition law,and not being known to the public is a legal expression of the secrecy.Our judicial interpretation considers that the secrecy requires the fulfilment of two conditions,that is,not being generally known to persons in the relevant field and being easily accessible.These two conditions are more principled,and the judicial interpretation does not provide further clarity on the two conditions.On the one hand,the courts often bypass the principled criteria when determining the secrecy,and directly apply the five circumstances that negate secrecy,resulting in a lack of substantive review of the secrecy.On the other hand,the parties to the case have difficulties in proving negative facts that are not known to the public,and there are obstacles to the courts’ review of such negative facts.The criteria for determining secrecy should be clear and specific,and the two conditions for satisfying secrecy should be further refined.Firstly,absolute secrecy does not meet the requirement of maximizing benefits,and relative secrecy imposes requirements on the domain and territory of the public.Commercial information needs to maintain secrecy among competitors in the same industry,while the territoriality of the public needs to be analyzed on a case-by-case basis.Secondly,not being generally known is not the same as novelty of a patent,and a trade secret only needs to maintain a minimum level of distinction from publicly known information.The entire content of a trade secret cannot be known to peers;it can be known only by its surface,otherwise the information loses its secrecy.Thirdly,ease of access can be understood in terms of the difficulty of forming the information,the confidentiality measures taken by the parties and the egregiousness of the infringement.The greater the cost of forming the information,the more difficult it is to obtain information;the more reasonable the confidentiality measures taken by the parties and the worse the behavior of the infringer,the greater the possibility of commercial information with secrecy.Customer lists are the most common trade secrets in practice,the court in the case about the customer list,mainly through the special nature of the customer list,th e cost invested by the right holder and the difficulty of others from the proper way to obtain to review the secrecy.This proof of positive facts not only reduces the difficulty of proof for the plaintiff,but also helps the court to examine whether the commercial information meets the two conditions of the secrecy.Other management information as well as technical information can refer to the method of determining the secrecy of customer lists,but technical information also has to be considered for reverse engineering.