Research On The Calculation Rule Of Trade Secrets Infringement Damages According To The “Benefits Obtained”

In the context of the booming knowledge economy and globalization,trade secrets are extremely special compared with other intellectual property types.Trade secrets are a huge intangible wealth for market subjects.Damages is one of the important means to regulate the infringement of improper acquisition,improper disclosure,improper use of trade secrets.According to the actual loss calculation compensation amount,often appear "ten compensation nine inadequate" status quo.Trade secret infringement is a typical beneficiary tort,requiring the tortfeasor to the right to return the interests gained from the infringement,as a compensation for the damage to the right to the monetary relief means or damage calculation method,has been recognized by many countries and regions of trade secret protection legislation and judicial practice.However,according to the interests gained in the calculation of the amount of damages for trade secret infringement,the proportion of judicial practice is very low,there are not very clear conditions for the application of the return of infringement profits relief,infringement profits compensation rules to prove the allocation of responsibility for the application of the dilemma.There are two main reasons.First,the theoretical basis for the return of trade secret infringement profits has not been unified,which led to the return of infringement profits relief applicable conditions are not clear,to judicial practice caused confusion.Second,because China’s trade secrets itself secret,infringement of the covert characteristics,coupled with the existing legal provisions of the main content limited to the establishment of trade secret infringement,the lack of infringement of the rules of compensation for the distribution of proof of responsibility,the right to prove the burden of too heavy.In this regard,should be sorted out and review of the relevant doctrine of trade secret infringement profit return request basis defined as unjustified profit return,and then from the theoretical clear unjustified profit in trade secret infringement profit return in the applicable conditions,and then from the establishment of damages and infringement benefit return parallel application of the dual relief system,re-ring the scope of profits for business profits,the use of a variety of ways to determine the contribution of trade secrets The proportion,reasonable transfer of infringement profit compensation rules,the infringer applies reasonable license fee to improve the judicial application of the rules of calculation of trade secret infringement profit.