A lawyer to handle the legal business of commercial secret operation guide

In order to protect the business secret, service quality and service level to improve the lawyer engaged in legal service of commercial secrets, clear and specific operating rules, intellectual property committee of the all China Lawyers Association and the Beijing City Bar Association competition and Antitrust Law Affairs Specialty Committee based on legal theory and summary of practical experience, the operation guide.

Article second [range]

This guideline is intended to guide the practice of lawyers, lawyers for the enterprises and institutions, individuals to provide the management of commercial secret, commercial secret contract draft, trade secret litigation and other legal affairs operation reference.

Article third [business]

3.1Strong professional

Commercial secret is one of the important content in the protection of intellectual property rights. In view of characteristics of the intellectual property rights, the legal services have very strong professional. Especially the commercial secret compared with other intellectual property, does not have the absolute exclusiveness, does not have the publicity. In the identification and judgment of commercial secrets is compared with other intellectual property more complex characteristics:

1. Lawyers should pay attention to two times against commercial secret information disclosure in litigation, the litigation procedure not only can prove that the claim or defense fully, but also take the initiative to take measures to prevent the disclosure and protection of business secret is the expansion of the scope of. ;

2. The lawyer must grasp the protection of commercial secrets from the beginning or the research that has been carried out, and the only non general awareness of intellectual property protection of rights from infringement;

3. The lawyer must grasp the business secret rights and state law, civil rights, personal rights effective combination and division point;

4. The lawyer intention to accurately grasp the state set up the legal protection of commercial secret, in the framework of public interests and private rights, to find the fulcrum of trade secret protection.

3.2A wide range of knowledge

At present our country in the research and the legal protection of commercial secrets is not quite perfect, economic development and the protection ability of each place is unbalanced, lawyers need to know:

1. The legal nature and characteristics of the protection system of intellectual property, intellectual property rights and the judicial system of intellectual property rights;

2. The research and practice of knowledge management of enterprises, the market operation mode, human resources management is closely related with the protection of business secrets;

3. Flexible use of tort law, contract law, labor law, security law and other related laws and the specific provisions;

4. With the help of a professional, the delineation of commercial secrets "secret", need to understand the basic technical knowledge and management knowledge, strive for the commercial secret information, market conditions and competitive advantage have the basic knowledge and understanding.

3.3Specification of complex

Relating to the legal, judicial interpretation, the commercial secrets of the local regulations and departmental rules, industry management level are complex, cross, lawyers should be proficient and intention understanding various provisions of the legislation and practice should refer to all kinds of application, for the trade secret legal business.

3.4Many departments

The State Intellectual Property Office, the State Administration of industry and commerce, the national Ministry of science and technology, Ministry of human resources and social security, the State Secrecy Bureau, the State Economic and Trade Commission and the industry departments, industry associations are the commercial secrets of the specification, the lawyer to handle the relief secret protection system, national commercial ways of coordinated, and cultivating the ability of cross management and protection the.

Article fourth The definition and elements of business secret []

4.1Commercial secret is not known to the public, can bring economic benefits to the obligee, technology information and management information and the relevance of human rights to take security measures[1].

4.2Constitution: non intellectual, value, practicality and security.

Article fifth [non intellectual - is not known to the public]

5.1As the commercial secrets of the technical information and business information is not directly available through public channels, need to rely on trade secrets "creator" using known knowledge, experience or skills by creating or exploration, and / or human, financial, and material resources to acquire.

5.2As the commercial secrets of the technical information and business information is not direct knowledge in an area, stage. Therefore, commercial secrets "novelty" is the "relative" instead of "absolute":

1. Commercial secrets "novelty" below the patent technology of "novelty" absolute requirements, the patent technology requirement is compared "prior art", but is "no comparison for others about the requirements of commercial secrets";

2. Commercial secret is higher than that of the originality of copyright, copyright protection is the expression of ideas, design itself is not protected, and is the carrier for an idea and make it dependent on some tangible requirements for commercial secret, the formation of a technical scheme, procedure, process, product, customer list and so on, and may make the carrier has a value.

5.3Commercial secrets of the technical information and business information is not usually people in the information field of work generally known or readily available.

Article Sixth [value and can bring economic benefits to the obligee]

6.1Trade secrets must have commercial value and economic value, can bring economic benefits to the business secret rights or competitive advantage to people, is a commercial secret right people to pursue the protection of commercial secrets of the legal protection to the purpose and requirement.

6.2Reflect the value of:

1. The value of commercial secrets may be realistic, may also be potential.

2. The value of commercial secrets may be positive value, may also be negative value, such as a failed experiment records.

6.3For value, we should objectively identified, but not to the business secret rights on the subjective "think" to determine the.

Article seventh [practical]

Commercial secret information should have certain application:

1. With the recognition of the relative, is the difference between the important characteristics from general knowledge, experience, skills, and can be used in practice, practical.

2. A relatively intact, can through their own use or permit / transfer manner to allow others to use, implementation, and management by using practical and realize the value.

Article eighth [privacy right to take security measures]

8.1Confidentiality refers to the commercial secret rights or legitimate holders to take on the internal and external, security measures and trade secret information for reasonable.

8.1.1The business secret mainly depends on the right to take security measures, to make up the shortage of legal protection. A lawyer should help people the right to establish complete management system, complete contract system, perfect personnel system, perfect the early warning and prevention system.

See Chapter second.

8.1.2Should be based on the characteristics, factors involved in the information carrier right intention of confidentiality, identification degree of confidential measures, others through the proper way to the difficult easy degree etc.[2]The secrecy measures, way, method.

See article twenty-fifth.

8.2Take security measures are not required to be absolute, defect free measures, as long as it is reasonable, appropriate.

See article twenty-fourth.

Article ninth [] information of technology and business

9.1Those who meet the legal definition and legal elements of information, may be the commercial secrets. This information can generally be divided into two categories: technical and business information.

9.2Technical information

Mainly include: technical design, program, test, quality control, application process, design drawings (including sketch), formula, production process, industrial production methods, test methods and test record.

9.2.1As trade secrets, technical information, also known as the technical secret. Proprietary technology, non patent technology concept and technology secret is slightly different, lawyers should be distinguished and attention in the case.

9.2.2Technical information is an integrated technology solution, also can be one or several independent techniques a complete technical scheme.

9.3Business information

9.3.1Mainly include: management scheme, management know-how, customer lists, sources of information, production and marketing strategy, investment and financing plans, tender, bidding information.

9.3.2Business information in the performance characteristic with technical information, can be a complete business plan, can also be a management plan management elements of several relatively independent and / or its synthetic elements.

9.3.3All may bring about economic benefits to the obligee or competitive advantage of non technical information, can become a business information.

Article tenth Business secret rights []

Business secret rights is based on the provisions of the law or the agreement in the contract, the lawful holder of commercial secrets or permit the use of a citizen, legal person or other organization[3].

Article eleventh [get] business secret

Commercial secret obtained:

1. Units or individuals to independent research, development;

2. After approval, the owner of a commercial secret transfer legally;

3. Through the "reverse engineering": "reverse engineering" refers to the demolition, to obtain from open source products through technical means of Surveying and mapping, analysis methods and relevant technical information on the product[4].

4. Through the analysis, research, public information, information technology;

5. Because the trade secret owners of their own negligence, cause the commercial secrets to others;

6. Other legal channels to obtain.

Article twelfth [character] business secret

12.1The non intellectual

See article fifth.

12.2The protection of commercial secret: indefinitely as long as not to be open to enjoy legal protection indefinitely.

12.3Do not need special authorization or registration: commercial secrets from the date of legal rights, not authorized or required registration.

12.4Without paying a fee to the relevant departments: trade secret depends on human rights protection, no need to pay any fee to the relevant departments.

12.5Exclusive weak:

1. Commercial secret is not absolute exclusiveness, technology information and management information can not be against the third person independent research and development and business secret of same or similar, also cannot resist the third person from legitimate channels to know or to legitimate business secrets they have access to implement behavior.

2. Once the trade secrets are disclosed, it entered into the public domain, anyone can use, use.

Article thirteenth [not belong to commercial technology information and management information of the secret]

Does not belong to the trade secret information, are generally divided into the following categories:

1. This information is unique to the individual, can not copy the individual experience, individual skills;

2. The information for the industry generally known knowledge, common sense or industry practices and access way, method;

3. The information from the public information channels (such as: public places, newspapers, books, media, exhibition and so on) can be obtained;

4. This information without having to pay a certain cost and easy access to;

5. This information is only relates to the size, structure, materials, components, products of the simple combination of content, after entering the market, the relevant public products can be directly obtained by observation[5].

Article fourteenth [not protected by law "trade secrets"]

Not protected by law "trade secrets", is divided into the following categories:

1. Damaging the interests of the state or endanger national security information.

2. Harm the public interest, public health information.

3. Contrary to public order and good customs, ethics of information.

4. Gambling, drugs, yellow or instruments, National prohibition circulation formula, sales channels and other information.

Article fifteenth [] business secrets and state secrets

15.1Technical information and business information in the business secret can be state secrets, different points in the:

1. The legal nature of the two different;

2. Objects of protection of two different;

3. The scope of protection of the difference;

4. The difference between the two;

5. Protection of two different.

15.2Enterprises can use the coercive power of the state to protect the State Science and technology secret and the secret technology more powerful protection. Lawyers should pay attention to the country and various provinces of the State Science and technology secret in secret technology evaluation criteria and classification standard of classification.

15.3Enterprises and institutions to undertake major national science and technology projects or the important task of scientific research units, in accordance with the relevant provisions can be directly determined as state science and technology secret.

Article sixteenth [trade secrets and secret]

16.1We must distinguish between the commercial secrets of enterprises and work in secret, in the management of such as: manager meeting work plan, some management decision, compensation matters, staff does not necessarily constitute trade secrets, but can be used as a secret, require contact confidential.

16.2Work secret meets the constitutive requirements of commercial secrets, commercial secrets or can be transformed into commercial secrets.

16.3Enterprises and institutions to contact only work secret, do not bear confidentiality obligations of prohibition of business strife employees, not.

"Prohibition of business strife" see Chapter fourth verse third.

Article seventeenth [] Commercial Secret

Business secret information because the right people neglect leak or active disclosure or by others to open:

1. The information for the patent application and open;

2. Publications or other media disclosure;

3. Through public report, exhibitions, publicity and publication etc.;

4. Others violate confidentiality agreement to open.

Article eighteenth [the trade secret and other intellectual property]

18.1The commercial secrets and patent technology

18.1.1The commercial secrets and patent technology of different

1. Different protected objects: technical scope of patentable is legal, is object to the law can protect the prevail; trade secret includes technology information also includes business information.

2. Integrity: the statutory requirements of different patent technology is the complete technical solutions; integrity of business secret only can use or use, does not require a complete technical scheme.

3. The new requirements of different legal requirements: patent technology is absolutely was not known by the public; commercial secret requires not easy for people to.

4. Exclusive: the patent right has different degree of the rights, obligations are not specific, exclusive absolute has; the business secret has exclusive relative, not to reject others legally, and implement them or use.

5. Generate and have different rights: patent technology public expense, and to go through the statutory procedures for examination and approval; commercial secret is self generated or legitimate transfer.

6. The term of protection of patent technology is different: the term of protection of legal, once the patent loss (such as unpaid patent annual fee) or over the duration of protection is entered into the public domain, anyone can use the technology; commercial secret as long as not to be open, you can enjoy unlimited protection.

7. Right: the patent right not because of stability of different non legal factors and loss, trade secrets are disclosed for whatever factor is the loss of rights.

8. Protection of different regions: the patent technology has a strong regional, units and individuals in the absence of the patent right is granted to countries or regions, can be arbitrary use of the technology; commercial secrets can be based on multilateral or bilateral treaties have extraterritorial protection.

18.1.2Both commercial secrets and patent technology

A technology before the patent application or patent unpublished before should be protected as a trade secret. A technique or some associated technology can be part of the contents of the application for patent, part of the contents of protected as a trade secret. The practice of technical information and the protection of trade secrets and patent in two ways are the most effective.

18.1.3Patent protection and the protection of commercial secrets selection

1. The simple, easy to be others to study success or easier to technical information to others through reverse engineering analysis, business secret rights should consider the use of patent application means to protect.

2. Enterprises and institutions to secure ability strong, can use commercial secret protection.

3. Advanced technology and high degree of information, you can first use of commercial secret protection; technical information may lose advanced sex or may be others to apply for a patent, patent protection should be used.

18.2The commercial secrets and computer software

With the protection of the originality of the computer software is protected by copyright law, the procedures and documentation in accordance with the constituents of commercial secrets of the parts can be adopted at the same time the business secret protection.

18.3The commercial secrets and copyright

Expression of commercial secret information, may constitute a "copyright law" in the sense of protection works, can by the state "copyright law". The unpublished work in information, may also meet the constituents of commercial secrets, commercial secrets can be protected as.

Article nineteenth [laws, regulations, judicial interpretations, department regulations] (according to local regulations omitted)

"General rule of the civil law"

"The people's Republic of China on Anti Unfair Competition Law"

The progress of science and technology "the law of the people's Republic of China"

"The people's Republic of China, promoting the transformation of scientific and technological achievements"

"Contract law of the people's Republic of China"

"The labor law of the people's Republic of China"

"The people's Republic of China Labor Contract Law"

"The people's Republic of China anti monopoly law"

"Company law of the people's Republic"

"PRC Criminal Law"

WTO "agreement on trade related intellectual property rights"

Several provisions of the Supreme People's court "about civil action evidence"

Interpretation of the Supreme People's court "on the application of several problems in" the contract law of the people's Republic of China "(a)"

Interpretation of the Supreme People's court, the Supreme People's Procuratorate "on several issues of specific application of law in handling criminal cases of infringing intellectual property rights"

Interpretation of the Supreme People's court, the Supreme People's Procuratorate "on several issues of specific application of law in handling criminal cases of infringement of intellectual property rights (two)"

Interpretation of the Supreme People's court "Several Issues Concerning Application of law in civil cases involving unfair competition."

Guiding opinions on doing a good job in the trial of labor dispute cases under the current situation of the Supreme People's court ""

Some problems about the current situation of intellectual property trial service situation of the opinions of the Supreme People's court ""

Interpretation of the Supreme People's court "on hearing the law applicable to a number of dispute cases of technology contract"

Opinions of the Supreme People's court, the State Science and Technology Commission "on the correct handling of cases of disputes" of science and technology

Science and technology confidentiality provisions of the State Science and Technology Commission, the State Secrecy Bureau ""

The labor department "in violation of" compensation for labor contract labor law ""

The labor department "notice about flow of enterprises and workers problems"

The State Science and Technology Commission "opinions on strengthening science and technology in the flow of personnel management" technical secret

The State Administration of industry and Commerce on the constituents of commercial secrets "answer"

Some provisions of the State Administration of industry and commerce "on the prohibition of business secrets infringement"

The Ministry of labor and social security "involving commercial secrets infringement problems about the labor dispute cases in the letter"

The State Economic and Trade Commission, "on the strengthening of commercial secret protection work in the state-owned enterprises and institutions notice"

Views of State Science and Technology Commission "on several issues of scientific and technological personnel part-time"

The second chapter trade secret management

The first goal, mode and evaluation

Article twentieth [objectives]

20.1Management objectives of commercial secrets of the units is to promote innovation, realize the value, protection of rights, set warning, risk prevention.

20.2Lawyers should pay attention to the following matters:

1. Risk prevention should be considered from the following three aspects: to prevent their rights violations by others; to prevent the infringement of the legitimate rights and interests; to prevent the abuse of rights and restrictions on technology progress, technology monopoly behavior.

2. Partners, cooperation projects more, commercial secret is cracked and the greater the risk.

3. An important prerequisite for the business secret right to take security measures is to alert others "here are secrets", so as to realize the legal protection requirements.

Article twenty-first [management]

21.1Enterprises and institutions shall, according to their own mode of operation and management, business planning, focus on R & D, market share and competitive advantage, the arrangement and adjustment of trade secret management mode.

21.2Reference to the trade secret management mode: project management, grading management, regional management, departmental management.

Article twenty-second [evaluation] business secret

22.1The technical information and operational information do level processing and file management, generally uses the way of classification and annotation categories is defined.

22.2Delineation of the scope of trade secret mainly explores the following factors:

1. Whether this information is confidential possibilities;

2. The information project sources;

3. The information of the business secret protection is more favorable;

4. Whether this information and other legal protection object association.

22.3Assessment level shall mainly inspect the following factors:

1. Market situation and Prospect of this information;

2. The information of the economic value and competitive advantage;

3. The degree of difficulty of the information development cost, life cycle, technology maturity, security and the feasibility of reverse engineering;

4. Technical information whether to obtain the relevant experts or department appraisal and the appraisal results[6].

22.4Level change and decryption

22.4.1According to the business secret changes, timely adjust the level with changes in the market. Security level adjustment can increase can also be adjusted high.

22.4.2The following situations, the business secret can decrypt:

1. Secure the expiration of the period, the automatic decryption;

2. Commercial secret is or can be obtained easily from the open channel;

3. Technical information or business information obsolete, lost secret value;

4. By the new technology to replace;

5. Have a wide range of promotion or the use of excessive, leading to poor security transfer.

Article twenty-third [risk]

23.1Risk monitoring for trade secret information collection, technology research and development, management and protection measures are essential to a full range, all levels, all links, preventing leakage risk, reduce the cracked may.

23.2The main risk monitoring: monitoring, monitoring, R & D personnel decision-making monitoring, performance monitoring, monitoring.

The second section take security measures

Chinese lawyers advisory telephone: 18737170705

Article twenty-fourth [] security requirements

24.1Effective, reasonable: the business secret right people consciously adopt the corresponding security measures, and to ensure that trade secrets are not caused by leakage under normal circumstances, can maintain confidentiality measures taken are effective; considered confidential measures adopted by the appropriate is reasonable in the same industry.

24.2Method: enterprises and institutions for the protection of business secrets confidential measures adopted should be legal.

24.3The system of publicity (express):

See article twenty-seventh.

24.4Security measures should be as far as possible, clear scope of business secret information types, secrecy period and security method.

Article twenty-fifth The specific measures [secret]

Secrecy can consider the following measures:

1. And is aware of or may be aware of business secret information, contact the employee or the third party signed a confidentiality agreement;

2. To establish the system, rules and regulations in detail, and to all the staff of publicity (express);

3. Set the warning area, signs, adding guard mode, on the staff, visiting activities area personnel restrictions;

4. On commercial secret information storage, loan, transfer, special archives management, be special treatment of obsolete documents, data;

5. Preparation of security in commercial secret information, documents, drawings;

6. The computer system for the use and management of specific, and adopt the encryption and chain and unit area network fault to be confidential;

7. Other techniques, specific procedures or other public familiar reasonable measures to keep confidential;

8. The other according to the specific circumstances can use way.

The third section to establish rules and regulations

Article twenty-sixth [] system set up requirements

26.1The company decided to study the major issues, restructuring and business aspects of formulating important rules and regulations, shall listen to the opinions of the trade union of the company, and through the assembly of employee representatives or other forms to listen to their views and suggestions[7].

26.2The employer shall rules and regulations will directly relates to the immediate interests of workers decided to publicity, or inform the workers[8].

Article twenty-seventh [the public] system

27.1Express system publicity refers to the security system of "public" and the rules and regulations "".

27.2The establishment of enterprises, business secret the rules and regulations, to all employees and express the contents disclosed in the following manner, public or ostensive process shall be recorded and saved in that way:

1. In the specified location posted rules and regulations;

2. The published content and legal nature of regulations in a meeting;

3. The content and legal nature of staff written confirmation that promise to abide by the rules and regulations.

Article twenty-eighth [provisions] promote innovation

28.1In order to innovate the express business unit's intentions and goals, enhance staff awareness of intellectual property protection, motivate staff enthusiasm and initiative to enhance R & D capability of R & D.

28.2The main content:

1. Innovation meaning and purpose;

2. The goal of innovation and content;

3. Responsible for innovation and audit departments and responsibilities;

4. Innovative personnel range;

5. Valuable information;

6. Evaluation of project, project funds, project declaration and plan;

7. To declare the results, achievements and results release process;

8. File, data transfer, archive and library;

9. A duty of confidentiality;

10. Reward and punishment measures.

Article twenty-ninth [Intellectual Property] provisions

29.1To specify units of intellectual property rights in the content and scope, clarify the ownership of employee work.

29.2The main content:

1. Definition and classification of intellectual property rights;

2. Intellectual property right ownership principle;

3. Intellectual property rights operation method;

4. Valuable information reporting procedures and methods;

5. Mutual obligation of notice;

6. A duty of confidentiality;

7. Reward and punishment measures.

Article thirtieth [] the provisions on the administration of intellectual property rights

30.1To establish the enterprise intellectual property management system, ways and methods of clear procedure and results of intellectual property management, reward innovation achievements.

30.2The main content:

1. The management and managers;

2. Management mode and specific method;

3. Project and development program;

4. Funding approval and use method;

5. The declaration, and identification of published methods;

6. The approval and cooperation;

7. File, data transfer, archiving and lending procedures;

8. A duty of confidentiality and signing the staff;

9. Prohibition of business strife duty and sign personnel range;

10. Reward and punishment measures.

The fourth section staff management

Article thirty-first [] management objectives and content

31.1The employee is innovation, production and protection of basic elements of business secret, for staff management directly determines the business secret protection effect.

31.2Good job placement, work handover and sign a confidentiality agreement, the competition restriction agreement is a necessary link.

Article thirty-second The main links of management []

32.1Employ

32.1.1Inspects to hire employees have been with the original unit labor contracts, whether the obligation and the commercial secrets of the obligation of confidentiality, and please to hire staff to make written representations or promises;

32.1.2The similarities and differences between inspects to hire staff of the original position and the current position, careful arrangement of post;

32.1.3Examine relevant certificate, recruitment of staff to submit documents, interpretation rules and requirements of the post office;

32.1.4Make the necessary recruitment record.

32.2Signing

32.2.1According to the regulations, to determine the roles and responsibilities of hiring employees, consider whether you need to sign a confidentiality contract and agreement of prohibition of business strife;

32.2.2The interpretation obligation of confidentiality (NCA) content, scope, time limit, liability matters, agreed compensation and liability for breach of contract; interpretation of tenure and turnover (or retirement) legal nature of intellectual property rights;

32.2.3The employee shall fully respect the readme their own technology, skills, intellectual property, and record;

32.2.4To employ staff written confirmation and promise to abide by the rules and regulations;

32.2.5Make necessary record signing, improve employee files.

32.3Transfer

32.3.1Employees may be due to the following reasons and changing positions:

1. Not competent for the job;

2. Close off the need for;

3. Injury, disease need a long vacation;

4. The basis for the conclusion of the labor contract changes;

5. The administrative management, business management, development management needs to change jobs.

32.3.2Employee turnover, to protect the interests of employees, and safe protection unit of intellectual property loss, reduce the risk of commercial secrets were leaked.

32.3.3Improve the transfer formalities

1. To transfer important technical positions or senior management staff did not sign a confidentiality contract (the competition restriction agreement), should be;

2. The original contract (agreement) due to changing conditions need to add or change, to be perfect.

32.4Turnover and retirement

32.4.1Improve the turnover and retirement procedures

1. The handover to designate a person good data, documents, drawings and facilities, equipment, employees may not copy, copy express, corrupted files, data;

2. Shall not disclose, use or permit others to use the business secret belonging to the unit;

3. Shall not disclose, communication unit of work secret;

4. The secret information to any commercial confidentiality obligations.

32.4.2According to the regulations, reaffirming the provisions of intellectual property rights of ownership made on resignation or retirement in a certain period.

32.4.3Special provisions of the relevant departments of the state

1. For enterprises and institutions to undertake the project of State Science and technology plans or important scientific research task of scientific and technical personnel in scientific research task has not yet ended before transfer, resign, and possible technical secrets involved in major national science and technology projects or leakage of the scientific research task, endanger national security and interests, in principle not to grant the approval[9].

2. Technical secrets of enterprises and institutions have, according to the State Science and Technology Commission, the State Secrecy Bureau "science and technology" to determine the confidentiality provisions of the State Science and technology secret, secret related personnel transfer, resign, shall be subject to the approval of the classification of the competent departments, and secrecy education to its. Unauthorized leave for the party, and the employer is responsible for the administrative responsibility according to law[10].

Article thirty-third [Methods] from the secret

33.1Enterprises and institutions to take decryption measures aimed at reducing the risk of commercial secrets leak, and ensure the interests of workers re employment.

33.2Including decryption measures:

33.2.1Conversion work, change the relevant content, according to the labor contract, add or change a confidential contract or agreement of prohibition of business strife;

33.2.2Setting the period from secret

1. Apply to close off the staff to contact the business secret, senior technical staff, and the commercial secrets of the core information of senior management personnel;

2. Apply to close off the time in general staff asked to leave, retirement or unit that a few months before the need from their original positions;

3. Apply to close off the time shall be according to the factors of contact properties, confidentiality matters such as degree comprehensive consideration, the length of not more than 6 months;

4. Apply to close off the employee turnover, turnover or retire to the commercial secrets still bear the obligation of confidentiality.

The fifth section contract management

See Chapter fourth.

The sixth section public relations management

Article thirty-fourth [] the reception of guests

34.1Enterprises and institutions shall set up warning and warning signs of classified area declined, visitors enter.

34.2To involve commercial secret or business secret information may leak information, files, data, drawings and other finishing storage, placed in not directly see the place.

34.3When necessary, should express the visitors, not into the note has a special warning mark area or contact marking classified documents.

Article thirty-fifth [results]

35.1Enterprises to participate in technical exchanges, result demonstration, technology appraisal, should avoid showing core technology information, it is necessary to offer, it shall transfer the relevant materials marked secret, and designate specific personnel to receive and return meeting, and participants, Jian Dingren signed a confidentiality agreement.

35.2According to the relevant provisions of national and provincial, national civil servants, technical expertise, technology such as brokers, performing official duties or contact with enterprises and institutions shall keep confidential the business secrets are.

35.3Substantive content control and approved researchers published, articles, especially in the development of ideas and specific description of core technology should be restricted.

Article thirty-sixth [] exhibition publicity

Enterprises and institutions in various exhibition, exhibition, reporting the results of the meeting, should avoid to commercial secret information or may divulge business secret information, information, data, pictures and easy intuitive visual analysis, facilities, equipment to be disclosed and display.

The third chapter of business secret rights

The first day of business secret property

Article thirty-seventh [attribute] business secret

Trade secret includes technology information and management information, and different ownership, is a kind of special intellectual property[11]. Business secret rights does not have the exclusive monopoly; is a kind of legal right; has the qualifications, only to meet the conditions of information of technology and business to become a commercial secret[12].

Article thirty-eighth [the trade secret owner]

38.1The subject of right of business secrets may be a natural person, legal person or any other economic organization, from the right scope including holders of commercial secret and the licensee.

38.2Trade secret rights exclusive weak, any person may through independent research and development, reverse engineering, customer voluntary transactions lawfully obtained commercial secrets, that different people can have the same or similar commercial secret.

Article thirty-ninth [obligations] Commercial Secret

The natural person, the obligation of confidentiality of the legal persons or other economic organizations according to the provisions of the contract or law for.

Article fortieth [] carrier of commercial secret

The business secret can help human memory, also can be attached to the carrier. Carrier of commercial secret are very important for the management, use, trade secret rights.

Article forty-first [get] business secret

41.1The business secret can be the original, can also be achieved by the following. The former obtaining commercial secrets such as through independent research and development, reverse engineering, and made by the following mainly through the transferee or acquire permission to use such means.

41.2That commercial secret obtained:

1. The original: the R & D project, document, test data, technology acceptance documents that form of commercial secrets and belonging.

2. Made by the following: mainly through the contract in whole or in part to achieve commercial secret. The right people in the investment of business secret, accepted or all or part of the investment enterprises obtained commercial secrets.

Article forty-second [share] Commercial Secret

42.1Human rights can be agreed by the proportion of shared a secret. As the information technology, people have the right to ownership agreed proportion, as common to all, the right to use and benefit distribution, processing according to the relevant provisions of common technology. Otherwise agreed by the parties, the parties.

42.2Rights can be agreed to share a secret right of use. If the technology the right to use the agreed proportion allocation proportion, as human rights income received for the implementation of the technology achievements. Otherwise agreed by the parties, the parties.

Article forty-third [results] post and non post achievements

43.1Occupational outcomes is refers to the commercial secret staff to perform the tasks of the entity or mainly by using the material and technical means of the entity is completed. The right to transfer the right to use the results of his duty, belonging to the unit.

43.2Non occupational outcomes refers to employees in the work, commercial secret use their professional knowledge and material conditions, have nothing to do with the post, the right person is personal. The right to transfer the right to use, non duty results belong to the perfect man.

The ownership of second section technology secret

Article forty-fourth Technical information and technology [secret]

44.1Information technology refers to the use of the knowledge of science and technology, information and experience to do the products, technology, material and its improvement scheme.

44.2Technical information with commercial secret feature, which differs from the business information, also known as technical secret.

Article forty-fifth [home] commissioned the development of technical secret

45.1Secret technology developed, in accordance with the parties signed the agreement of the agreement; no agreement or the agreement is not clear, to the development of human right, the right to the use of trustor secret technology.

45.2Subsequent secret technology improved, no agreement, enjoy the ownership of the follow-up improvement and development.

Article forty-sixth [to cooperate in the development of technical secrets belong]

46.1Secret technology development cooperation, the parties signed the agreement of the agreement, no agreement or the agreement is not clear, the contract parties enjoy the right to transfer the right to use the technical secrets and.

46.2Subsequent secret technology improved, no agreement, enjoy the ownership of the follow-up improvement and development.

Article forty-seventh [other cases technology secret home]

47.1Technology transfer contract performance in subsequent improvement secret belonging

Contract for transfer of technical secret or licensing contract, in the contract technical achievement in any subsequent improvement, determine its ownership according to the agreement. There is no agreement or the agreement is not clear, the completion of the follow-up improvement by a party, the other parties shall have no right to share.

47.2Technology contract is invalid or revoked after the technical secrets belong

Technology contract is invalid or revoked, due to the performance of new technology achievement in the completion of the contract or in other technology on the basis of the results to complete the follow-up improvement technique of rights and interests sharing, unable to reach an agreement to determine the complete technical achievement, should go to a party[13].

47.3Investment by technology know-how ownership

"Company law" to allow the technology investment, there is no clear agreement of technical secrets belong to accept, funded enterprises enjoy. But the technology secret accounts for the contributions of much lower than the value of the technology, the general identification accept funded enterprises only enjoys the right of use[14].

47.4The participation in a pool of technical secrets belong to technology investment

The participation in a pool by the way of technology investment, technology investment people do not participate in the joint venture management, and to guarantee clause form of joint venture or joint venture agreement with each other to pay the price or use fees, as a technology transfer contract[15]. Affiliation body enjoys is technology ownership or right of use case and visual.

47.5The new technical achievement attribution forming technology consulting and technical services

The new technical achievement trustee is generally provided by the client of the technical materials and working conditions, agreed in accordance with the agreement, no agreement or the agreement is not clear, belonging to the trustee.

47.6"Commercial secrets belonging to secret"

Exists widely in medicine, food and beverage industry in the "secret" belongs to the technical information of the secret, should respect the history and reality, the actual control of man-made that legitimate rights[16]. The actual controller died, determine the new rights in accordance with the law of succession of the principle, the right people designated heir, by the designated heirs, unspecified, belong to the legal heirs inherit enjoy.

47.7Technology turnover after the completion of the ownership

47.7.1Continue to engage with the original unit duties or tasks concerning the technical development work within one year after leaving, the job-related technological achievement belongs, unless otherwise agreed, the original unit enjoys.

47.7.2Employee turnover and technological achievements to complete a year later, enjoyed by the employee and the new unit.

47.8Technology of information home contract without the qualifications of civil subject of scientific research organization signed

Technology contract does not have the qualifications of civil subject of scientific research organization signed by a legal person or any other organization, authorization or approval in accordance with the contract, the legal person or other organization enjoy rights; unauthorized, technical interest is shared by the scientific research organization.

47.9Technology of information ownership contract period

Technical secrets formation during the contracting term, except otherwise agreed, the right belongs to the contractor[17].

The third section business secrets belong

Article forty-eighth [] business information and business secret

48.1Management information refers to the information beyond the bring the competitive advantage for human rights for all kinds of information management activities. Including the management know-how, customer lists, sources of information, production and marketing strategy, tender and bid information. In accordance with the constituents of commercial secrets business information, business secret.

48.2Business information, obtained by the Corporation, provide commodities or services to other for-profit organizations, individual industrial and commercial households or natural person.

48.3Compared to the technical information, innovative and creative business information requirements is not high.

Article forty-ninth [the formation of management of business secrets belong]

Business secret of enterprises accumulation or formed in the operation activities of enterprises and institutions, to enjoy.

Article fiftieth [that] the customer list

50.1A list of customers is an important form of business information, to reflect on and rights of the people of supply and demand and prices of specific management information.

50.2The client list is a commercial secret, besides the general constitutive elements of trade secrets, mainly according to the following aspects identified:

1. Whether the obligee's business activities, whether the cost of material and human resources. The right people for a long time investment, pay a certain amount of physical and mental labor, formed a relatively stable relationship between supply and demand;

2. The competitor can not easily obtained from the open channel, customer lists need after a long time of accumulation, collection, processing and finishing;

3. With a specific. Client list should include the customer's name, contact method, requirement types and habits, operating rules, price affordability and comprehensive customer information. The client list should be protected by law is the difference between a specific, obtained from the open channel to ordinary client list.

50.3Can customers of commercial secret list, simple enumeration is different from the name of customer. So called customer information or customer file, should be more accurate.

The fourth section trade secrets dispute

Article fifty-first [trade secrets dispute]

In the commercial secret infringement disputes the claim of the plaintiff, the defendant demur rights do not belong to the plaintiff, in order to weaken or infringement complaint and claim an offset of the plaintiff.

Article fifty-second [trade secrets dispute]

52.1In the commercial secret infringement disputes, contract disputes and unfair competition disputes, ownership disputes may occur, without prior action or counterclaim.

52.2In the commercial secret infringement, breach of contract disputes, third people to have the right to request an independent third party applies for participating in litigation. If the court does not have jurisdiction, the people's court to have the jurisdiction to the defendant court prosecuted[18].

The fourth chapter trade secret related contracts

Drafting and modifying the first contract

Article fifty-third [pre] audit and investigation

53.1A business unit and others involved in business secret contract, should carefully study the following contents:

1. Rights and obligations of human intelligence and ability to perform;

2. Status and rights scope;

3. The value of trade secrets and the market competitive advantage;

4. The extent of legal protection of similar industry information, technology and trade secrets, information surrounding technology;

5. Take security measures the degree of perfection.

53.2Enterprises and employees to sign a confidentiality contract (including the competition restriction agreement), should carefully study the following contents:

1. Employee responsibilities and implementation capacity;

2. The integrity of the staff degree;

3. Employee expectations.

53.3The parties to a contract before the exchange of technical information and data confidentiality agreement before signing the contract, the parties cannot agree on the contract, it shall not affect the validity of confidentiality agreement.

Article fifty-fourth [draft] or modify the contract requirements

54.1Legal requirements

54.1.1Legal requirements of drafting or modify the primary requirements of the contract.

54.1.2Legal review is mainly from the following aspects:

1. The purpose of the contract is legal;

2. The transaction is legitimate;

3. Both parties are voluntary transactions;

4. Both parties have trading qualification;

5. Accrual agreement legal;

6. There is no "illegal monopoly technology, hinder the technology advancement or infringes on the technological achievements[19]Situation.

7. Other terms and conditions for compliance with the law.

54.2Integrity requirements

54.2.1Drafting or modify the contract should be based on the parties signing objective approach and the realization of the main clauses of the contract, to ensure complete.

54.2.2The main clause:

Refer to the "contract law" article 324th and the operating guidelines related contract.

54.3Rigorous requirements

54.3.1Drafting or amending the contract must abide by the use of legal language principle, avoid the use of ambiguous, doubtful word sentences. For difficult technical, professional words can use "interpretation of the term" way to special meaning to determine its concept, connotation and in this contract in the contract;

54.3.2Careful description of the contract content, accrual, considering the time, place, method, procedure, terms, set the unforeseeable conditions to consider factors and business on both sides of the secret may therefore risk being leaks and remedial measures.

54.4The rights and obligations of

54.4.1Honesty, fairness is the basic principle of contract law, specific to the contract clause requires that the mutual rights, obligations.

54.4.2Rights, obligations wrong results may lead to some terms of the contract is invalid or because of unconscionability is the other party to apply for change or cancellation.

54.5Responsibility and behavior causality requirements

54.5.1Damages for breach of contract and compensation for losses in the contract, the applicable law, the burden of proof liability consequences, and to determine the amount and so on are not the same. Therefore, as agreed in the contract, tort compensation for loss of default, or both agreed on the same contract, law should focus on the contract the rights, obligations, capacity, technology risk and possible damage to judge.

54.5.2Gold and loss compensation for breach of contract agreed in the contract can not be divorced from the specific behavior and setting, and prevent the echoes breach or infringement.

54.5.3The amount of damages and / or calculated in the contract agreed by both parties, and should be specific and clear agreement. The amount of compensation for loss cannot be agreed in advance, but the two sides agreed in the contract can be calculated.

Article fifty-fifth [Contract]

55.1The following circumstances can lead to contract or part of the clause is invalid:

1. Seriously interfere with the progress of science and technology, monopoly technology;

2. The abuse of intellectual property rights;

3. Infringement of rights of technical achievements;

4. Violating the compulsory provisions.

55.2The parties shall be invalid because the contract and the unauthorized disclosure of commercial secrets, the contract technical data, receiving samples, prototypes, shall be promptly returned to the right holder, shall not retain copies[20].

The secret contract between second enterprises and employees

Article fifty-sixth [key] contract

56.1A confidentiality contract is designed to prevent commercial secrets and warning attention the existence of trade secrets, in order to achieve the ultimate purpose of protecting right.

56.2Enterprises can keep the business secrets confidential matters stipulated in the labor contract and related to intellectual property, can also be a separate sign a confidentiality contract with employees.

Article fifty-seventh [] the main clauses of the contract

1. Job responsibilities

2. Data, software transfer content, location and procedure;

3. Confidential matters (commercial secret information name);

4. The scope of confidentiality and secrecy period;

5. Disclosure limitation;

6. Prohibitions;

7. Assistance agreement;

8. Information, documents, equipment storage, archiving and processing;

9. Liability for breach of contract;

10. Contract modification and supplement;

11. The dissolution and termination of contract;

12. Prohibition of business strife obligation: to see this chapter third

13. Close off;

14. Solution to the dispute;

15. The establishment and effectiveness of contract time.

The third section agreement of prohibition of business strife

Article fifty-eighth [] points of agreement

58.1Prohibition of business strife is refers to the enterprise and awareness of commercial secrets the substantive content of the employee signed an agreement, contract staff before leaving the unit shall not be a certain period of time working in the production of similar products or managing the same business in competition or other interested parties within the unit, or self production, there is competition between the original unit operation and similar the product or service, the enterprise to pay compensation to employees in a certain amount of cost, restrict employment range, in order to prevent a precaution the original unit commercial secrets.

58.2Enterprises and institutions may sign "the competition restriction agreement and have confidentiality obligations of employees". This protocol can be used as part of the conservative trade secrets in the contract, can also be a separate signed.

58.3The competition restriction agreement shall not exceed two years. For no agreed term of the competition restriction provisions, the difference of various provinces and cities, should be reference to the corresponding provisions.

58.4The competition restriction agreement can be signed when signing labor contract, also can be in period, staff turnover or retirement sign.

58.5Object signing the agreement of prohibition of business strife is:

1. Is aware of or contact with the business secret senior technical staff, senior management personnel or other confidential employee;

2. "Company law" provisions of article 149th of the directors, supervisors and senior management personnel[21].

58.6Sign the competition restriction agreement in principle for enterprises which have business secret meets the statutory conditions.

58.7Whether or not to sign the competition restriction agreement obligations, people still have a commercial secret obligation to keep aware of.

Article fifty-ninth The main clause [agreement]

1. Associated with the conservative commercial secrets of the contract;

2. Overview of the prohibition of business strife or similar industry competition unit;

3. Prohibition of business strife industry scope;

4. Prohibition of business strife region;

5. The term of competition restriction;

6. Compensation payment dates;

7. If the amount of compensation and payment;

8. Prohibitions;

9. Assistance agreement;

10. Both sides of the liability for breach of contract;

11. The conditions of dissolution and termination of agreement;

12. Solution to the dispute;

13. The protocol was established and the effect of time.

Article sixtieth [compensation agreement]

60.1Compensation should consider the following factors set:

1. The obligations of the professional skills, may affect the degree of the life level of obligations of the;

2. Total compensation obligor in the unit a year or a year before signing the agreement.

60.2Different current provisions in various provinces of compensation amount, the general annual compensation is left before the annual revenue of 1/2 to 2/3.

Article sixty-first [] agreed liquidated damages

Should the penalty considering the following factors:

1. The cost of obtaining commercial secrets of the units;

2. Obligations of commercial secrets of the degree of contact;

3. The obligation of compensation amount;

4. The extent of the damage may be caused by the default behavior.

Article sixty-second The termination condition [agreement]

The competition restriction agreement terminated due to the following reasons:

1. The expiration of the agreement and termination;

2. Commercial secret is open;

3. Obligation of employee death;

4. Enterprise bankruptcy, dissolution, termination and no rights;

5. Not agreed compensation, it cannot reach an agreement;

6. Enterprises and institutions in violation of the competition restriction agreement, not paid or owed compensation without justifiable reasons, meet the agreed standards or terms;

7. The entry into force of the termination of legal documents.

The fourth section technology secret contract

Article sixty-third [key] contract

63.1The contract technical secrets can be divided into secret technology development contracts, a contract for transfer of technical secret and the secret technology license contract.

63.1.1Secret technology development contract refers to the parties for research and development projects of new technologies, new products, new processes and new materials and systems, may form the technical secrets or intended to technical secrets to protect contract.

63.1.2Contract for transfer of technical secret refers to the legitimate ownership rights technical secrets, including other authorized foreign know-how transfer of the patent application, technical secrets, relates to the technical secret related rights to another contract.

63.1.3Technology licensing contract refers to the legitimate ownership rights technical secrets, including other have the right to license the technology secret, contract to license others to implement, the use of the technical secret the.

63.2This section is only on special contract technical secret guidelines, the general provisions of technology contracts do not explain.

Article sixty-fourth [] the main clauses of the contract

64.1This article set the main clause covers the main clause secret technology development contracts, a contract for transfer of technical secret and technology secrets licensing contracts three types of contract, therefore should be considered in the application of different kinds of contract, combined with the actual situation to select case.

64.2The main clause, including:

1. The purpose of the contract;

2. Defines the name of the contract;

3. Standard technical characteristics, the characteristics of;

4. Development purposes and objectives;

5. Human rights and rights scope;

6. Right status;

7. Licensing the use of the term, region;

8. Technical indicators, technical parameters (data);

9. Information technology transfer content, location and procedure;

10. The right of ownership, and treatment with intellectual property rights;

11. The contract price and payment;

12. Paid in the form of account access and audit;

13. Technical risk and risk taking;

14. Subsequent share ownership and rights improvements;

15. Secure content, time, region and security personnel range;

16. The performance of the contract responsibility;

17. Result sharing;

18. Results declaration;

19. The results of identification;

20. Technical guidance and training;

21. Prohibitions;

22. Assistance agreement;

23. Liability for breach of contract;

24. Contract modification and supplement;

25. Termination of the contract;

26. The dissolution and termination of contract;

27. Remedial measures;

28. Ownership and contract after the dissolution or termination of technical data, equipment;

29. Nouns and terminology;

30. Solution to the dispute;

31. Applicable law;

32. The signing of the contract and signed (effective) time;

The fifth section other need to pay attention to the protection of commercial secrets of contract

Article sixty-fifth Purchase contract, loan contract [other]

Enterprises and institutions of the purchase contract, loan contract may number, said specification, each batch of incoming time interval, the purchase department, usage of loan, payment direction and other factors, easy to be others use, research and analysis and infer the research direction, the company's research and development process of new ideas.

Article sixty-sixth [lease contract a safekeeping contract, transportation contract, contract, such as repair]

The key to this kind of contract depends on prior prevention, can use "black box closed" measures, in the contract clearly agreed not to reverse engineer.

Article sixty-seventh [] a processing contract

Enterprises and institutions entrusted processing equipment, procedures, process, formula may be completely exposed to each other, increasing the possibility of commercial secrets are disclosed, ways and links.

Article sixty-eighth [Contract] foreign trade secrets

The international technology trade is mainly through technology transfer, licensing contract mode, technical secret is to adopt this way. The Licensor for mastery of technology and in technology trade occupies initiative, technology forcing the transferee to accept some unfair terms, damage the interests of the transferee. Therefore, in the business secret license should pay attention to prevent the other party does not equal terms, at the same time assignment or licensing of foreign commercial secret, to avoid the violation of international treaties and international standards, so that the other party has the opportunity to technology monopoly, anti restrictions such as an excuse to cause some provisions invalid.

Article sixty-ninth [secret] the contribution of technology contract

For the technical secret of investment contracts, lawyers should pay attention to the following several aspects of the problem:

1. Investor legal qualifications, rights and status;

2. The technology assessment standard and share secret value, legal proportion;

3. Right of ownership of shares;

4. Shares of equity share.

The fifth chapter disputes processing

The first sectionInvestigation and analysis of the facts

Article seventieth Listen to the statements of the parties []

70.1Listen to the statements of the parties is a way to quickly understand the case, is also widely collecting evidence and in-depth case studies of essential.

70.2To guide the parties to a statement of fact, especially with the relevance and disputed facts, in order to avoid the aimless about; summarize the case history, both points of view, the focus of controversy.

70.3The problem is not clear please clarify the parties, may also provide a detailed list of questions in hindsight, focused questions on some details, and require the parties to provide written evidence related to support.

70.4Finishing the statements of the parties and answer record, good talks to accurate, comprehensive records, transcripts, basically all summarized the legal relation.

Article seventy-first [material] investigation and evidence collection

71.1Basic law case analysis is evidence, must pay attention to collect the evidence materials, including documentary evidence, material evidence, audiovisual materials, electronic evidence, testimony of witness, records of inspection and appraisal conclusions.

71.2The lawyer to investigate and collect evidence material, should follow the principle of legality, validity principle, a comprehensive collection of principle, keep practicing secret principle.

71.3The lawyer to investigate and collect evidence material way:

1. Collect evidence materials to our party survey;

2. To investigate and collect evidence material to the other party or the third person;

3. To investigate and collect evidence materials;

4. Refer to the relevant departments of the archives and file data;

5. Request the court to investigate and collect evidence material.

71.4Methods the lawyer to investigate and collect evidence materials, including meeting, access, copy, copy, photos, audio and video, notary, notary, buy download identification, evaluation, inspection of the scene, simulation experiments.

Article seventy-second [judge] trade secret points

72.1According to the statements of the parties and the preliminary evidence collection, preliminary judgment involved business secrets, is to judge the specific content of the commercial secret.

72.2Commercial secret is composed of several parts, should also be clear in whole or in part is the commercial secrets, or part and the whole are commercial secrets.

72.3The request commercial secret content protection should be fixed in the corresponding carrier, the carrier can be repeated in the specific content of the commercial secret.

Article seventy-third [] the business secret

According to the relevant evidence materials, determine the commercial secrets of the carrier, the scope, content, whether the information is consistent with the statutory constitutive requirements of trade secret.

Article seventy-fourth [] to determine the subject of right

74.1According to the statements of the parties and the evidence provided, determine the commercial secrets of the ownership.

74.2The parties in the acquisition of commercial secrets, should be clearly the nature and. The right of different properties of different not only substantive rights, their legal rights are also different.

Article seventy-fifth [] to determine the subject of obligation

In the commercial secret infringement disputes, according to different circumstances, obligation subject may involve existing employees, employee turnover, the transferor, the licensee or other third party; in technology trade secrets dispute, the main subject of obligation is the contract the other party or employees in the business secret; contract dispute, obligation the main contract each other. A lawyer should be determined according to the circumstances of the case, the initial may involve the obligation subject.

Article seventy-sixth [] judge the nature of the dispute

According to the circumstances of the case, judge dispute belongs to tort disputes, ownership disputes and contract disputes, or belonging to the breach of contract and tort concurrence.

Article seventy-seventh [] judge the limitation of action

77.1Trade secret litigation for the general principles of the civil law "," general provisions of the statute of limitations for 2 years, from the right people knew or should have known the infringement occurred therein have the day, provisions concerning limitation suspension, suspension and extension of the same.

77.2For the continuous implementation of the infringement of business secret, from the right people knew or should have known the infringement occurred date to the right people to the people's court date has been more than 2 years, during the commercial secret protected by the law, the people's court shall sentence the defendant to stop infringement, the amount of damages in tort since the right to sue in the people's Court on the forward pass 2 years, more than 2 years will not be protected by tort.

Article Seventy-eighth [] the entrustment formalities

The lawyer of the parties to accept the Commission, by the law firm and the parties enter into a contract, the firm lawyers to collect fees and issue a formal invoice lawyers fees, a power of attorney issued by the parties agreed generally or specifically authorized license "".

Article seventy-ninth Article [lawyer] archives management

The principal commercial secrets is firm and the undertaking lawyer shall be one of the secret information, the effective management in accordance with the law firm of file management regulation. The business secret case files should be stored separately, hand care, personal use, access to trade secrets case file personnel shall sign a confidentiality undertaking.

Article eightieth Analysis and determination of main Zhang [] v. please

Lawyers acting for the plaintiff should be based on facts, evidence, analysis and determine the appropriate defendant, specific claims.

Refer to the relevant contents of the sixth chapter, the seventh chapter.

Article eighty-first Analysis and determination of Defense []

81.1Lawyers acting for the defendant, should according to the facts, analyze and determine the possible reasons.

81.2Defense generally, including:

1. Whether the plaintiff belongs to the proper rights of people, the selection process is legitimate;

2. The information is a commercial secret;

3. The commercial secrets of the content is clear, whether fixed carrier;

4. Whether it knows, use, disclosure of trade secret claims the plaintiff;

5. The defendant and the plaintiff litigation information information, whether or not the same approximation;

6. Whether the defendant the plaintiff the acts of infringement of trade secret.

Article eighty-second [choice] remedy

Based on the nature of the dispute and the relevant evidence, choose the appropriate way of dispute settlement, often can choose to send lawyer letter, issue lawyer statement, negotiation, apply for labor arbitration, lawsuit, apply for arbitration to the court, administrative complaint, report to the public security organ, criminal private prosecution one or several approaches to the court.

The second section lawyers and lawyers letters

Article eighty-third [review] statement of fact

Review the facts as follows:

1. Whether the statement that the information in conformity with the statutory conditions of commercial secrets;

2. The statement of claim or commercial secrets have legal rights;

3. Whether existing or potential violations of the commercial secrets of the statement, which includes the tort;

4. Declaration provides evidence of the fact whether support his statement.

Article eighty-fourth [Objective and content of the lawyer statement]

84.1The lawyer statement of purpose is open to clarify the facts, to eliminate the adverse effects of try every trick to mislead the public, prevent; can also be the potential infringer or are infringer warned, play the role of warning; can also play the role of publicity and education, that the principal rights stance.

84.2The content of the statement, including the two major part of the statement and statement of opinion matters:

1. Declaration matters refers to the declaration issued a statement on the involved business what secret, need to specify a specific facts;

2. Disclaimer opinion refers to the statement people hold to the business secret incident involving the attitudes, opinions and basis.

Article eighty-fifth [statement] object and scope

Lawyers are specific matters to non specified objects, through newspapers, periodicals, broadcasting, television, Internet and other media to stand.

Article eighty-sixth [PROBLEMS]

Lawyers should pay attention to the following questions:

1. A client's authorization, and in the name of the agent is engaged in the business of;

2. The content of the statement must be true and legal, not illegal and damage the legitimate interests of others and the prior rights;

3. The content of the statement must be confirmed in writing the client.

Article eighty-seventh [review of] the fact lawyer letter

Review the facts as follows:

1. If the principal claim information in conformity with the statutory conditions of commercial secrets;

2. The principal is to advocate commercial secrets have legal rights;

3. Relationship between the object and the client sent a letter;

4. Sent a letter to the existence of an object act of infringement or breach of contract, and the specific facts;

5. Object may bear legal responsibility letter;

6. The evidence provided by the clients can support the legal opinion.

Article eighty-eighth [Objective] letter and content

88.1Send a lawyer's letter to the lawyer claims of human rights, the nature of tort or breach of contract, the consequences of behavior, legal responsibility of the legal consequences, the responsible person should bear clear its behavior. If the future really want litigation, then, the other received a justified warned not to stop infringement or breach of contract, tort can be determined with knowing.

88.2The main contents of the lawyer's letter:

1. The content of the right of the trustor;

2. To prove the obligor of infringement or breach of contract the fact, combined with the analysis of the nature of the legal basis for the fact, that it may bear the legal responsibility;

3. Put forward the requirement of client;

4. The legal provisions in the law can be stated in Appendix applicable, to help understand the calling object the provisions of the law and the legal responsibility;

5. In the act of infringement or breach of contract, also can consider to attach proof of delivery and commitment to the book, let the letter object sign letters, and give a reasonable period of time to sign a pledge.

Article eighty-ninth [object] letter

The lawyer's letter mainly to the infringement and breach.

Article ninetieth [letter] condition

90.1Letter condition:

1. The principal selection procedure and way to solve it, has completed the corresponding evidence collection work;

2. There may be resolved through negotiation way.

90.2If an emergency, can also be a warning letter from a lawyer, and collect relevant evidence.

Article ninety-first [note]

Lawyers send lawyer letter, should pay attention to the following matters:

1. The letter must be sent to the principal agent name;

2. The lawyer letter must pass a written confirmation of the principal;

3. Send a lawyer's letter to follow: first to confirm each other has been received, and then to take the initiative to contact with each other, to explore the subjective intention of the infringer. By further contact with each other, can also cause certain pressure on the other side;

4. Send lawyer letter may be filed not tort action for each other.

The third section talks

Article ninety-second [the exchange and analysis requirements of the parties]

92.1Negotiation is probably one of the lowest cost solution to the dispute, the aim of the talks is to maximize the minimum cost and pay the interests of the lawyer to participate in the negotiations, the role is to provide legal help to maximize the benefits.

92.2Through communication, analysis to understand the requirements and expectations, contribute to the specific direction and objectives.

92.3According to the request of the parties, proposed to meet the required conditions, and then combined with the existing evidence legal analysis, a reasonable division of the request of the parties, that can achieve the requirements, can not achieve the requirements, and may achieve the requirements of several parts.

Article ninety-third [negotiations] information collection

Negotiation information collection generally through the following channels:

1. Understand directly to the party;

2. To the third party to understand the situation;

3. Query the relevant organs of archival material;

4. Network retrieval relevant background information.

Article ninety-fourth [] understand each other

Lawyers in the negotiations before the deal with each other the following circumstances to be know:

1. The other main body qualification, credit and production operation;

2. Each other this negotiation attitude;

3. The other negotiations with the relevant business information and management decision and the negotiations may impact on each other;

4. The case, most likely not to receive case, and may receive the most do not want each other in the negotiations.

Article ninety-fifth [Focus] analysis

95.1The parties request and understanding of each other based on the analysis of the negotiation process, which may be involved in the main issues of fact and law.

95.2Analysis and assessment on the interests of both sides, the negotiation conditions make the following four kinds of preparation:

1. The ideal conditions of the parties;

2. The real goal of parties;

3. The bottom line;

4. The best compromise and concession parties.

95.3The main evidence, both parties involved in this dispute the legal nature and legal consequences. This is the basis for both sides to evaluate their own interests.

Article ninety-sixth [Objective] negotiations

96.1Goal of the negotiations is a lawyer before and in the process of negotiation, the parties request according to the various influence factors of negotiation and, through analysis and evaluation the desired outcome of the negotiations.

96.2The relative strength of the negotiations both sides mainly depend on the parties to bear the consequences of the breakdown of negotiations in the extent. A lawyer shall explain the circumstances in their possession, as far as possible the requirements and goals to achieve the maximum degree of consistency, making the main goal of the negotiations the parties.

96.3In determining the negotiations before the goal, a lawyer should and the parties to discuss the best alternative you can accept, increase options themselves, which requires a full analysis and repeated measurement, list the specific quantitative indicators, and the need to negotiate acceptable to both sides.

96.4The alternative is an important link in the negotiations, can be adjusted according to the other side of the situation and the negotiation process.

96.5Work out the main proposal and alternative concessions and exchange.

96.6Ready for negotiations not after the success of the next steps. Prior to the proposed settlement to each other, must complete the procedure of preparation, especially relating to infringement or breach of contract evidence materials, must be comprehensive and complete collection of.

Article ninety-seventh [key] negotiations

97.1Persuasion: lawyers in the negotiation according to the different situation, comprehensive use of various forms of persuasion to convince accept negotiation scheme.

97.2Exchange: exchange process is the basic process of offer, counter-offer.

97.3Concessions: lawyers in order to safeguard the core interests and achieve the goals for the appropriate adaptations under the premise of.

Article ninety-eighth [character] lawyers involved in the negotiations

98.1Lawyers are legal problems when negotiating the protagonist.

98.2The lawyer is best to adhere to the principle of negotiators (not against type is not cooperative).

98.3Lawyers may also be consulting, legal problems of the judge and the drafting of documents people.

Article ninety-ninth [note]

Lawyers in the negotiations, should pay attention to the following items:

1. A lawyer should not have personal preferences and personal feelings;

2. The lawyer statement should not be aimed at specific individuals, avoid conflicts;

3. The lawyer as far as possible not negotiate matters directly the final accept or reject decision;

4. Lawyers can be put on the negotiation options in the negotiation process, but to the results of the negotiations do not subjective evaluation;

5. Negotiations in the administrative, criminal, civil procedure can be carried out at any time.

The sixth chapter civil remedy of common problems

Section 1 basic requirements

Chinese lawyers advisory telephone: 18737170705

Article 100th [] work record

Because of the trade secrets dispute cycle is relatively long, data, files are often more, according to the time order and make detailed record is very necessary, there are legal significance to dispute matters shall specify time, main content, simple evaluation and management results.

Article 101st Analysis of the facts and evidence collection []

101.1Analysis of the facts is the basis for determining the appeal or defense opinions, submit the evidence, the lawyer shall listen to the statements of the parties due diligence and make preliminary legal judgment.

101.2The agent shall verify the facts and analysis together with the client, and is related to the dispute of part of the collection of evidence.

101.3The evidence is insufficient, it shall please the complement or agent to investigate and collect, and consider whether and how to apply to obtain evidence or to take evidence preservation.

Article 102nd [] the litigation request

102.1The claim is the core purpose disputes. All the evidence materials, a statement of the facts, reasons and legal defense opinions, comments will be around the appeal of.

102.2Request for compensation should be considered from the following aspects:

1. The commercial secrets of the maturity and market value;

2. The development degree of difficulty, the transfer price is high or low, licensing mode;

3. The legal nature and degree of fault fault with each other and specific behavior;

4. Tort damage result;

5. The amount of liquidated damages, compensation calculation way agreement;

6. Executable and can achieve the target.

Article 103rd [method] the comprehensive use of litigation

Combined with the case, consider and adopt legal means and measures for use:

1. Careful analysis of the plaintiff and the defendant defense, evidence and legal advice;

2. The other party may submit proof of their testimony, and prepare for the opposition;

3. This is not a public hearing application and evidence for keeping secret, to avoid the two disclosure of commercial secrets;

4. Choose the present evidence preservation, property preservation, the burden of proof for the extension, witness, the expert assistant, apply for identification and other applications;

5. The plaintiff claims increased attention, change the time, pay attention to whether the objection to jurisdiction and / or counterclaim.

The second section jurisdiction determination

Article 104th [Department]

104.1Preliminary judging the nature of the dispute, to determine the different authorities:

1. Is between the employer and employee labor contract disputes, should be to the labor arbitration departments to apply for arbitration;

2. Belongs to the between employers and employees and their new employer infringement disputes between equal civil main body, or to contract disputes (not including labor contract) or civil tort disputes, should be to the people's court or the arbitration committee for arbitration proceedings or; for infringement disputes, may complain to the administrative departments for Industry and commerce;

3. Suspected of crimes of commercial secrets, can report to the public security organs, also can bring criminal private prosecution to the people's court.

104.2Employees and third common tort, can the staff and the third person as a joint defendant directly to the court.

104.3The agreement of prohibition of business strife for between the worker and the employer of the dispute, if the parties to the grounds of breach of contract claims, belong to the labor dispute, should be resolved through the labor dispute handling procedures in accordance with the law; if the parties to the infringement of trade secrets claim, belong to the unfair competition disputes, the people's court may in accordance with the law and shall accept the application.[22]

104.4After employee leaves his post, breach of confidentiality contract, infringement of commercial secrets of the original units, enterprises and institutions according to the contract or confidentiality confidentiality of confidential contract dispute lawsuit filed, independent. This kind of case not of the labor dispute cases, not subject to the labor dispute processing constraints[23].

104.5The labor contract if expressly agreed on the content of the conservative trade secrets, because the unperformed, caused the commercial secrets of the employer violated and labor dispute occurs, the parties to the labor dispute arbitration committee for arbitration, the arbitration committee shall accept the application, and according to the relevant stipulations and the labor contract decision.[24]

Article 105th [] jurisdiction

105.1Trade secret civil regional jurisdiction

105.1.1Infringement jurisdiction, can choose according to the actual situation in the location or infringement prosecution, wherein, tort includes the place of tort and tort results happen. Infringement should be based on the specific infringement of the plaintiff accused infringer to determine.

105.1.1.1Place of tort means that the defendant was charged with violations of the region, including illegally obtaining commercial secrets, illegal disclosure of commercial secret and illegal use of commercial secrets.

105.1.1.2The result of tort occurred, should be understood as the result is direct infringement have occurred, not to the damage that the plaintiff is the result of tort occurred, nor will the result of tort arrived as tort results occur, should be clear about the "tort results" is aimed at specific tort.

105.1.2The territorial jurisdiction of contract disputes, according to specific conditions in the location or contract lawsuit.

105.1.3Disputes over territorial jurisdiction, according to specific conditions in the location or contract lawsuit.

105.2The territorial jurisdiction of labor dispute

The labor dispute arbitration commission shall be subject to the jurisdiction of labor disputes occurred in the region. Labor dispute, a labor contract or the arbitration commission the employer where the labor dispute. Both parties to the labor contract and the employer where the labor dispute arbitration committee for arbitration, the labor dispute arbitration commission to fulfill the labor contract.

105.3The Arbitration Commission shall be selected by the parties concerned, not under the jurisdiction of arbitration and geographical jurisdiction.

Article 106th [] jurisdiction

106.1The level of civil jurisdiction disputes

106.1.1The grade jurisdiction, trade secrets dispute shall not only by the higher people's government and the Supreme People's court has jurisdiction over the specified outside the general IP civil cases of the basic people's courts, are under the jurisdiction of the intermediate people's court.

106.1.2Has the jurisdiction over general IP civil cases the court jurisdiction standards, in accordance with the implementation of the Supreme People's Court promulgated and implemented since February 1, 2010 "under the jurisdiction of the grassroots people's Court of first instance IPR civil cases standard".

106.1.3The higher people's Court of jurisdiction standards, according to the Supreme People's Court promulgated and implemented since February 1, 2010 "on the adjustment of a local people's Court of first instance jurisdiction of civil cases of intellectual property standards notice", namely "the Supreme People's court jurisdiction litigation value more than 200000000 yuan in the first instance civil cases of intellectual property right, and the object of action in the amount of 100000000 yuan and a party's domicile is not in its area or foreign, Hong Kong and Macao related first instance civil cases of intellectual property right."

106.2The labor dispute arbitration commission shall be subject to the jurisdiction of labor disputes occurred in the region. Labor dispute arbitration shall not be subject to the jurisdiction by level.

106.3The Arbitration Commission shall be selected by the parties concerned, not under the jurisdiction of arbitration and geographical jurisdiction.

Article 107th [proposed should pay attention to the issue of jurisdiction objection]

107.1The defendant objection to jurisdiction, it shall put forward during the submission of defence.

107.2In order to better understand the facts and evidence collection responding, or to delay the substantive hearing, the defendant will usually put forward objection to jurisdiction. The synthesis of all kinds of factors, such as: single defendant, location, convenient action, law enforcement environment and other factors, can consider to choose the location of the court.

The third section evidence preservation and property preservation

Article 108th [evidence]

108.1Apply for preservation of the evidence is an important guarantee of trade secret disputes plaintiff, content of evidence preservation include the implementation of tort and tort evidence on the benefits, the specific methods for preservation of evidence, evidence preservation during litigation, notarization of evidence preservation before litigation.

108.1.1Pre litigation preservation: from the protection of the interests and to prevent the destruction of evidence point of view, the evidence preservation before litigation should be the preferred way. However, to the court ruled that the evidence preservation before an action is difficult. In some places, normative documents by the higher people's court in the trial of provisions, commercial secret infringement disputes, China's patent law and other intellectual property laws on pre-trial provisional regulations prohibiting evidence preservation measures and pre litigation does not apply[25].

108.1.2V. preservation: compared with the evidence preservation before litigation, litigation evidence preservation in relatively easy. But in practice often need to have certain conditions, such as the content of the right, the explicit content and clue right source and rights based legal and valid, the suspected infringing greatly, the evidence preservation, the parties did not specifically by notarization, self access and provide a corresponding guarantee.

108.1.3Notary preservation: relative to the more difficult litigation evidence preservation before litigation or litigation, both parties after the start, can the notary office to apply for preservation of the evidence. In addition to have sufficient evidence to the contrary, to overthrow the notarization of evidence of the circumstances, the legal acts, legal facts and documents notarized, evidence should be confirmed. In the pre litigation, the parties can make full use of notary evidence collection and preservation, is a good effective measures v. preparation.

Article 109th [property]

109.1According to the possibility of evidence has detailed argument prevails, timely apply for property preservation. In this way, not only can protect the judgment of compensation implementation issues, can also put pressure on the defendant, the defendant reconciliation initiative. To stop the infringement, prevent the rights extended losses and has important meaning to ensure the execution of effective judgments.

109.2Because the plaintiff trade secrets dispute cases in the relatively low rate of success, the preservation of property in the case for licensed difficulty also increased many, therefore, the plaintiff should try to provide all aspects can prove successful possibility and necessity of preservation of evidence.

109.3Court property preservation measures will be in strict accordance with the relevant provisions of the civil procedure law carefully. In adopting property preservation measures, will strictly examine whether the parties put forward application for property preservation and provides reliable enough to guarantee; the applicant of the right of commercial secret has a stable legal effect; be tort fact applicants are obviously; the scope of protection is not reasonable, preserves the way is appropriate, is whether the applicant has paid ability etc.. Not necessary for preservation, preservation result or will result in a great loss cannot be redeemed to the respondent's legitimate rights and interests, the people's court does not adopt property preservation measures.

109.4In order to effectively property preservation and timeliness, in the prosecution before or at the same time you apply for the preservation of property is appropriate.

The fourth section of commercial secrets of the identification and assessment

Article 110th Appraisal.

110.1Identification of institutions

110.1.1Professional identification of the commercial secrets, intellectual property rights belong to the judicial authentication shall be identified, who commissioned the included in the roster of authenticators and authentication institutions were identified, requirements and personnel must obtain the intellectual property judicial identification of qualification, but not the general public of certain industrial association or organization.

110.1.2The people's court approves the application, usually the parties should be determined in consultation institutions and personnel identification of qualification, the negotiation fails, designated by the people's court, and notify the party concerned in a reasonable period of time to identify the bodies, appraiser's qualification or whether to apply for to avoid comments matters.

110.2Identification of content

110.2.1Is generally were identified for the information, including two parts of non-public intellectual identification and identity identification. Object and scope of parties should be identified, including human rights alleged infringement commercial secret is not known to the public, information and human rights infringement use commercial secrets are the same or substantially the same.

110.2.2The people's court can only professional technical facts and professional management of the facts presented a commission of authentication, whether technical information, business information human rights constitute trade secrets, the alleged infringer whether tort, legal issues, does not belong to the scope of the authentication, the people's court shall make a decision according to the corresponding evidence.

110.3Identification of material submitted, selected, transfer and fixed

110.3.1Identification of commercial secret material is the material base of identification activities depends on the development, its submission, selected, transfer and fixed vital, if the identification of material not submitted, incomplete, untrue, inadequate, or damaged, lost or replaced during transfer, then the appraisal conclusion may not be recognized.

110.3.2The parties shall submit complete materials within a prescribed period for identification, otherwise, should bear the adverse consequences of expert conclusions.

110.3.3Proceedings in the court of the authentication, shall be in accordance with the principle of both organizations substantive review evidence for identification of the material of relevance, authenticity and legitimacy review, and the parties views make transcripts to confirm identification materials are true, complete.

110.3.4Identification of agencies entrusted with the people's court, to identify the controversial technological issues in litigation, by both parties through cross examination of real, legitimate, effective evidence material as the appraisal basis. Conclusion basis without evidence of both parties or check the quality certificate, is not a valid evidence, cannot serve as the basis that the facts of the case.

110.3.5For the identification of material transfer and fixed, can advise the court, in the identification of material quality certificate after passing the resealed, and let the parties sign or seal on the record, and sealing signatures in the identification of materials.

110.4Evidence and admissibility of appraisal report

110.4.1Appraisal report after cross examination can be used as the basis for decision;

110.4.2Identification report to cross examination and adoption, the key is the expert witnesses, lawyers should take the initiative to apply to the court for notification of the evaluation institutions to receive inquiries, expert witness shall appear in court to receive the inquiries of the parties concerned. A lawyer should actively apply to people with expertise to assist the quality certificate.

Article 111st Assessment.

111.1Assessment agencies: a commercial secret assessment also belong to the professional identification, shall entrust an appraiser qualification assessment, and authentication institutions and personnel must obtain the intangible assets price appraisal or evaluation qualification.

111.2Assessment content: commercial secret assessment content usually involves two, one is against the value of the business secrets assessment, another is the value loss is infringement of trade secrets tort caused by the loss of the right owner, that is.

111.3Evaluation methods: evaluation method of business secret mainly includes cost method, income method and market method, CPA should choose appropriate according to the commercial secrets of assets.

The fifth section court preparation

Article 112nd [for] is not a public hearing

In order to prevent the two disclosure caused in trade secret litigation, commercial secret in litigation involving themselves, whether the plaintiff or the defendant, shall timely apply to the court for not a public hearing, but the business secret has been disclosed except.

Article 113rd [to] the application for confidentiality

113.1To request the court to inform the other party to assume the obligation of confidentiality. Specific forms can be court shall record, by the participants in the proceedings to sign, or by the participants in the proceedings to sign confidential commitment books and other written documents.

113.2Timely apply to the court for the confidentiality of the relevant evidence. Specific forms can be commercial secret substantive content, not to disclose the verdict marked secret, confidential files evidence into vice roll etc..

Article 114th [] an expert witness

For technical or professional management information of strong problem, the parties may apply for one or two persons with professional knowledge to appear in court on specific issues of the case are explained. These professionals do not belong to the fact that the witness, that belongs to the technical explanation. Between the expert witness and with the parties, appraisers, can ask.

The sixth day trial

Article 115th [] to determine the focus of controversy

115.1According to the indictment and the reply, can be summed up the focus of controversy disputes, disputes court generally in the court investigation before the start of the inductive case.

115.2Agent that the focus of controversy has errors or omissions, it shall timely put forward.

Article 116th [quote]

116.1Whether the plaintiff or the defendant, of their claims or defenses facts, will submit evidence.

116.2The burden of proof should be completed within the specified time period in accordance with the request of the court:

1. The time limit for adducing evidence can be negotiated by the parties concerned, and accepted by the people's court[26].

2. The people's court shall designate the time limit for adducing evidence, the specified period shall not be less than thirty, since the client receives the case after notice and notice of accepting computation[27].

116.3Received the other party evidence, apply to the court to submit rebuttal evidence.

Article 117th [evidence]

117.1Quality certificate, the parties concerned shall authenticity, relevance, legitimacy on the evidence, for the evidence and prove that no force, question, explain or refute[28].

117.2For the sources of evidence, proof of facts and object of proof and the other is not clearly express the problem, may apply to the court or the court agreed to ask questions to each other.

Article 118th [] proxy statements

Agency comments lawyers should take legal advice, and should be combined with the facts. The court did not confirm the important facts and evidence necessary to explain and restatement, should be the use of evidence, rather than on facts and statements.

The seventh chapter trade secret infringement lawsuit

The first section tort action points

Article 119th The infringement of business secret [type]

119.1"Anti Unfair Competition Law" lists of infringement of commercial secrets of:

1. Commercial secrets by stealing, luring, coercion or any other improper means to acquire the rights of the people;

2. Commercial secret disclosure, use or allow others to use the means of acquiring the rights of the people before;

3. Violating the agreement or the rights of people's request of keeping the commercial secrets, disclosure, use or permit others to use the business secrets they have.

4. The third party knows or ought to know the above mentioned illegal conducts, access, use or disclosure of trade secrets of others, as a violation of trade secrets.

119.2Infringement of commercial secrets of the behavior, may be the illegal acquisition behaviors, illegal disclosure, illegal behavior, a law allowing others to use the behavior, also may be two or two above.

Article 120th [get] unfair means

120.1Improper means to obtain commercial secrets of others including theft, luring, coercion or any other illegal means. The so-called other unfair means in addition to the above three methods, the other has no legal basis and / or contract basis means, such as fraud, snatch, commercial spy means.

120.2Using improper means to obtain commercial secrets of others behavior itself constitute infringement, regardless of whether the doer obtain others' business secrets or disclose or use. This kind of infringement of the notable feature is the means of unfair. This behavior makes the business secrets of the right owner in danger.

120.3Actors can be internal staff, or external personnel, also can be in abroad, the common behavior.

Article 121st [] secrecy and confidentiality requirements

121.1Secrecy and confidentiality requirements, make relative people to know others' business secrets have the obligation to keep business secrets of others, but also constitutes a trade secret constitution elements of security measures.

121.1.1Confidentiality agreement is refers to between the obligee and the relative person about conservative commercial secrets agreed.

121.1.2Confidentiality refers to the rights of unilateral requirement is relatively conservative commercial secrets requirements.

121.2The relative secrecy and confidentiality requirements can be units and individuals having business relations with the right person, also is the right of employees. Units and individuals having business relations including but not limited to, with the right person:

1. With the right person to production and operation activities of the units and individuals having direct business relations, such as suppliers, agents, processors, banking, technology service provider;

2. Provide a service for the rights of the people of external personnel, such as business consultant, lawyer, CPA, etc.;

3. The commercial secrets of the licensee;

4. The rights of people to the trade secret as investment partners.

121.3The obligation of confidentiality to produce can be derived from confidential agreement or the rights of the people of confidentiality requirements, also comes from the obligation to keep confidential the statutory.

Article 122nd [illegal disclosure of trade secrets of others]

122.1The disclosure of commercial secrets obtained refers to the infringer to business secrets of the right owner to public, including:

1. Inform the specific third person, make the business secrets for the specific third person knows. Regardless of whether the third party to disclose to other people, regardless of whether the third party use of trade secret rights, will not affect the infringement constitutes disclosure;

2. Disclosed to some specific, such as the infringement of people talking about other's business secrets in private, or participate in the specific staff meeting disclosure of trade secrets of others. The results did not reach the other's business secrets known to the public, but has been difficult to control the diffusion and for others to use;

3. To the public, the infringer through the information media such as newspapers, magazines, radio, television and other spread to the society, or in public places will be commercial secrets reveal to the public. This public aftermath destroyed the secret of business secret, make it into the public domain.

Article 123rd [illegal use or permit others to use]

123.1Illegal use of others' business secret behavior, including:

1. The illegal acquisition of business secrets of others, for their own use;

2. Illegal access to others' business secrets, allowing others to use the;

3. Legitimate access to others' business secret, unauthorized use or use beyond the range of human rights licensing;

4. Legitimate access to others' business secret, without authorization of the right people, to license others to use.

123.2The infringer to obtaining commercial secrets for others to use, whether it is free or not, shall not affect the infringement.

123.3Illegal use of the commercial secrets of the others is not restricted, including the commercial secrets of others directly used in production and operating activities, such as used in the production of products, make sales plan, management etc; also includes indirect for production and business purposes, such as for staff training, research and development of new products, develop new marketing strategies in others on the basis of commercial secrets.

Article 124th [Third] of tort

124.1Although third people not directly from the right people obtaining commercial secrets, but if who knows or should know the infringement of trade secrets, and from the infringer to obtain, disclosure or use of commercial secrets, as a violation of trade secrets.

124.2Third people constitute infringement, in the subjective to knew or should have known that the premise.

Article 125th [evidence basically prove infringement]

125.1Show evidence of infringement refers to prove that the defendant illegal access, disclosure, behavior of right to use the commercial secret evidence.

125.2"Contact and similar" principle, in civil proceedings the plaintiff to prove that the defendant possession, use, disclosure of business information is the commercial secrets from the plaintiff, preliminary evidence that two step method is usually adopted "contact and similar", the possession, use, disclosure of business information is the commercial secrets from the plaintiff. That is:

1. That the defendants had contacted the business secret, such as the defendant was the plaintiff developers, commercial secret data storage, the commercial secrets of the licensed users; commercial secrets or the defendant has the condition or have the opportunity to contact the plaintiff, the defendant was the unit such as technical management personnel, the defendant had visited the production line;

2. Business information and the plaintiff and defendant have similar commercial secret.

125.3If the carrier of the commercial information or use the commercial information generated results (such as product, carry out follow-up software) itself, can prove that the business information is the commercial secrets of the plaintiff's (such as drawing is the seal, content in the marker, the unique watermark etc), you don't have to trade secrets to prove that the defendant contact or may contact the plaintiff.

Article 126th [compensation basis and basic evidence]

126.1The amount of compensation for the infringement of business secret method of damage, you can reference to determine the amount of damages for patent infringement[29].

126.1.1According to the calculation of the loss or profit right;

126.1.1.1According to the request by the holder of right, right holder due to the loss of the infringed or the infringer has acquired from the interest to determine the amount of compensation:

1. The right person for being infringed by the loss can be calculated according to the patentee products due to infringement reasonable profit total reduced sales amount multiplied by each patented product the product. The total number of people it is difficult to determine the right sales to reduce the total number of infringing products, reasonable profit in the market on sales multiplied by each patent product the product can be regarded as the right person for the loss caused by the infringement.

2. Gained by infringer may benefit according to the total number of infringing products on the market by the reasonable profit of each piece of infringing products from product computation. The infringer has acquired from the interests of the general in accordance with the infringer's profit calculation, to complete the infringement on the industry of the infringer, can be calculated according to the sales profits.

126.1.1.2The plaintiff shall provide relevant evidence, such as the original, the defendant's annual output, profit rate, loss of before and after comparison of tort, on both sides of the annual report and the tax situation.

126.1.2Calculated in accordance with the fee of license use of multiple

126.1.2.1By the infringer profits are difficult to determine, licensing fees can refer to, according to the specific content of the commercial secrets, the nature and case of the infringement, licensing fee, the commercial secrets licensing act, scope, time and other factors, referring to the commercial secrets licensing fees 1 to 3 times to determine a reasonable amount of compensation.

126.1.2.2The plaintiff should provide reference licensing contracts, licensing fees, payment vouchers and other evidence.

126.1.3No licensing fees or royalties may obviously unreasonable, can according to the specific content, commercial secrets of the nature and case of the infringement and other factors, in more than 10000 yuan, 1000000 yuan of the following to determine the amount of compensation.

126.2Because tort led to the commercial secret is known to the public, should be based on the commercial value of this business secret to determine the amount of damages.

126.2.1The business value of the secret, according to the research and development costs, the implementation of the commercial secrets of the income, can get benefit, can keep the competitive advantage of the time[30].

126.2.2The plaintiff should provide the development, development of the commercial secrets of the cost, the commercial secret value evaluation report evidence.

Article 127th [] to determine the commercial secret point

127.1Both technical information or business information, as to claim rights, should be clearly pointed out that commercial secrets of the "secret", namely the difference between the content of information to the public information of specific, but not the general said a technology or a piece of data is a commercial secret. Can not say that a product is a commercial secret, business secret refers to the information, the product may constitute a carrier of commercial secret, but it is not a commercial secret.

127.2Secret commercial secrecy may be the complete information in one or a few local information, processing methods such as assembly tolerance, the product of a key parts; may all the local information of the complete information in individually do not have the secret, but the secret is that combination of the known information, as with known product assembly of new products.

Article 128th [] the Provisional Measures

Involved in the lawsuit of intellectual property law and judicial interpretation, patent, trademark and copyright litigation, all provisions of the provisional measures. But the anti unfair competition (including trade secrets) legal and judicial interpretation, not on the provisional measures content. In this regard, all over the court's opinions and practice is not a. Some courts make clear to the business secret cases do not take temporary measures; some of the court is to support the provisional measures.

The second section agent

Article 129th Fact [analysis]

The basic facts of the case are analyzed, including a review of the basic evidence, determine whether the infringement of business secret, whether the conduct constitutes.

See Chapter sixth.

Article 130th [analysis of selected breach or infringement]

The defendant's acts constitute a breach of contract and tort concurrence, comprehensive analysis from the burden of difficult, jurisdiction, the amount of compensation and other aspects, determine the choice of breach or infringement.

Article 131st [] the litigation request

131.1The lawyer with the case in the case analysis, evidence and familiar with the legal case,, can put forward the following claims:

131.1.1The cessation of the infringement, can be specified as:

1. Requests the defendant to stop the disclosure of commercial secrets;

2. Requests the defendant to stop the use of commercial secrets;

3. Request the infringer to stop other tort;

4. Requests the tortfeasor will contain a carrier of commercial secret returned or destroyed.

131.1.2Compensation for losses.

131.1.3You can request in some special cases: eliminate the effect, removal of obstacles.

Article 132nd [] plaintiff qualification

132.1The trade secret owner may bring a lawsuit.

132.2Commercial secret exclusive licensee may bring a separate lawsuit.

132.3The exclusive licensee and all can be jointly filed a lawsuit, or all the people in the non prosecution cases, their own suits.

132.4General licensee and all together a lawsuit, or by all the written authorization, separate proceedings.

Article 133rd [defendant]

133.1In tort for single subject case, there is no choice to determine the problem.

133.2In the illegally obtained commercial secrets infringement and illegal use of the commercial secrets of the different circumstances, usually the joint tortfeasors as a co defendant, only in certain exceptional circumstances, to choose one as a defendant, such as a One's whereabouts is a mystery.

133.3Business secret cases and most of the employees. Confidential employee, employed in the competition with the original unit enterprise, or set up new enterprises, the original enterprise commercial secret for the new enterprise. The new employee and enterprise may constitute joint tort. Determine the defendant may consider the following scenario:

1. The staff and the enterprise as a co defendant. To obtain compensation and be able to solve problems more thoroughly, some cases also can choose the jurisdiction of the court.

2. Only the staff as a defendant. Has not yet mastered the business secret in the new enterprise, can take the programme. Stop to stop employees tort infringement new enterprise objective.

3. Only the infringement enterprises listed as the defendant. To provide evidence of the plaintiff in the employee may, but not as the defendant was held, can take the programme.

Article 134th [the trade secret constitution review]

According to the constituents of commercial secrets, commercial secrets of the review of the plaintiff or the legal requisites. If a commercial secrets, commercial secrets should also determine the point. If the business secret point cannot be precisely determined, it is to be determined in a wide range, so that there is room for manoeuvre in the follow-up action.

Article 135th The burden of proof of plaintiff []

135.1The plaintiff qualification of evidence

135.1.1The plaintiff is the right of commercial secret, providing a carrier business secret in most cases, and clearly stated in the pleadings of commercial secrets to form can, do not need special evidence to prove himself is a commercial secret owner. When necessary, can be supported by evidence of business secrets formation, such as the development of records. But if a trade secret is a commissioned development or transfer of the proceeds, it shall provide the corresponding contract.

135.1.2The plaintiff is the commercial secrets of the licensee, need to provide Licensee use evidence, such as license contract, the owner of a commercial secret proof etc..

135.1.3If the plaintiff is an exclusive license to Licensee, commercial secrets not to prosecute or authorized evidence should, for example, a written explanation of trade secret rights plaintiffs urge obligee to exercise the right holder fails to exercise the evidence.

135.1.4If the plaintiff is a common licensing by the licensee, shall also submit the trade secret owners agree to authorize the exercise of the right of the.

135.2Proof of business secret legal elements of the evidence

135.2.1To prove the security measures taken evidence, with the following one piece of evidence, enough to prevent confidential information leakage can be in normal circumstances[31]:

1. Defining the classified information access scope, only to inform the content of relevant personnel must be aware of the;

2. For classified information carrier to lock and other preventive measures;

3. A secret sign on the carrier of the classified information;

4. On the classified information using passwords or codes;

5. Sign a confidentiality agreement;

6. The secret machines, factories, workshops and other places restrictions on visitors or forward secrecy requirements;

7. To ensure that the information secret other reasonable measures.

135.2.2That secret, that is "not known to the public" evidence. Because of the "unknown to the public" is a negative fact, the defendant raises any objection, the defendant had negative secret evidence.

135.2.3"That can bring economic benefits for the right people, practical" evidence. The elements generally no special evidence. Commercial secret paid to obtain evidence, product sales, the plaintiff or the defendant profit loss evidence can support value of business secret.

135.3To prove that the accused infringement evidence: proof of the plaintiff and the defendant information similar, if related professional knowledge, can be resolved through identification.

Other see Chapter Sixth

135.4In determining the amount of compensation for evidence.

See Chapter Sixth

135.5The above evidence of 135.3 and 135.4, may exist in the office or the third person, should be timely to apply to the court for evidence preservation.

Article 136th [] to determine damages

Based on the calculation method of some 126th of the damage compensation, a method of selecting the most favorable to the plaintiff, determine the specific amount of compensation.

Article 137th [] the litigation strategy

137.1Determine the action strategy can take the following factors into consideration:

1. Determination of the defendant;

2. Determine the cause;

3. Determination of infringement or breach of contract lawsuit;

4. To determine the jurisdiction of the court;

5. Whether the combination of criminal procedure;

6. Whether the administrative complaint;

7. Whether you need to put other application: evidence preservation, property preservation, investigation and evidence collection, identification;

8. Submit the progress and the degree of evidence;

9. If the conciliation or mediation.

The third section agent

Article 138th To understand the case and the parties [communication]

After accepting the entrustment, a lawyer should make an overall understanding of the facts of the case. Requires the parties to the facts to make a real complete introduction. Inform the rights and obligations of the parties and litigation risk, interpretation procedure.

Article 139th [original, the defendant qualification]

Review of the plaintiff and the defendant is eligible. If it is a necessary joint action, omission of the common litigants, can apply to the court for the additional party.

Article 140th Business secret rights review []

140.1Review the plaintiff is the trade secret owner or licensee.

140.2If the plaintiff claims the owner of a commercial secret, to examine whether can question the right source:

140.2.1The plaintiffs argue that the trade secret is to develop their own income, examine the evidence to support its claim and whether or not the contrary content, whether the defendant has to understand the evidence to the contrary and hold the evidence to the contrary.

140.2.2The plaintiffs argue that the trade secret is a commissioned development or cooperative development income, review its ownership agreement, is under development, or a client, or all together.

140.2.3The plaintiff claims of commercial secrets of the income, shall review whether the transfer of the contract and fulfill the rights, whether the defective, when necessary, review the transferor's right is defective.

140.3If the plaintiff is a commercial secret of the licensee, shall review whether the right of action.

Article 141st [Defense] business secret

141.1The secret of defense. Any of the following circumstances, can maintain the relevant information is not unknown to the public[32]:

1. The information pertaining to the technical or economic areas of human common sense or industry practice;

2. This information is only relates to the size, structure, materials, components, products of the simple combination of content, after entering the market, the relevant public products can be directly obtained by observation;

3. This message has been in the publications or other media to disclose;

4. The information has been through the public report, exhibitions and other public;

5. This information can be obtained through other public channels;

6. This information without having to pay a certain cost and easy access.

The defendant may be obtained from the open channel evidence, deny the secret. Usually can be carried out through the following two ways:

141.1.1By the parties to collect relevant evidence, the parties dispute background information is the most understanding person, often have the dispute whether the information information for the public situation.

141.1.2Trust mechanism in the open literature retrieval retrieval.

141.2The plaintiff did not take appropriate security measures of defense. Special attention should be paid to the plaintiff to prove the security measures taken after the file is made up.

Article 142nd [Defense] commercial secret infringement

142.1The legal source of defense:

1. Own research and development of defense;

2. Reverse engineering defense;

3. Made from third party legitimate defense.

142.2Information is not the same: to prove that the defendant's plea for business information and business secrets of the claim of the plaintiff does not constitute a substantially the same.

142.3The trust transaction defense: relates to the client list that business secret, where customers and staff relied on an employee units for market transactions, the employee turnover, can prove that the customer voluntary market transactions with yourself or Qi Xin unit, should be identified without the use of improper means, but other workers and the original unit agreed otherwise[33].

142.4Not knowing that should know: when a defendant is defense as the third party infringement sued, can take to prove his non should know the direct infringer infringement knowing or, as a defense.

Article 143rd [against] damages

The reason and evidence review of the plaintiff damages, calculation method for loss compensation and tort causality, loss compensation amount and composition of the retort.

In section fourth, trade secrets are not tort litigation

Article 144th [summary]

The Supreme People's court in 2008, "the provisions of civil cases" no "confirming non Infringing Commercial Secrets" case. But there has been this kind of practice case. Referring to other confirming not tort litigation case, the case for "confirming non Infringing Commercial secrets".

Article 145th [unlike other confirming not tort litigation]

The biggest difference between trade secret and other intellectual property is not public information. Confirming non infringing business secret cases, in judicial practice is also still in the exploratory types of cases. The main problem is: how to protect the legitimate rights and interests of the plaintiff and the investment security, prevent the abuse of litigious right and obtaining commercial secrets of others.

Article 146th [] the acceptance condition

At present, the confirming not tort lawsuits admissibility condition, there is no unified regulations. Only in the "explanation" Supreme People's Court on the trial of patent infringement of several issues concerning the application of confirming non infringing a patent case acceptance conditions make the regulation, "human rights issued a patent infringement warning to others, be warned or any interested party by written notice obligee to exercise the right of action, since the rights of people receiving such written notice within one month of the date or self written warnings issued within two months from the date of the rights of people, not to withdraw warning nor a lawsuit, be warned or any interested party filed a request to the people's court for confirmation of its behavior is not patent infringement litigation, the people the court shall accept the case." Because of similarities of intellectual property cases, confirming non infringing trade secret litigation, will also with reference to the provisions of.

Article 147th [cases]

Reply of the Supreme Court in that case, "confirming non infringing patent litigation of infringement dispute[34]." The following questions about whether the counterclaim and jurisdiction, but also the qualitative was determined based on the. But the academic circles also somebody thinks, confirming not tort litigation should be the action of confirmation, and should not be included in the tort action.

Article 148th [can] counterclaim

148.1Whether can the counterclaim confirming not tort in a tort action, or in confirming not tort litigation of counterclaim in tort.

148.2The Supreme Court in the case of approval: "that relates to the same facts not patent infringement litigation and patent infringement litigation, both parties in accordance with the civil procedure law to protect their rights and interests in different stages of process occurred in the dispute lawsuit respectively, are independent litigation, confirm the party brought no infringement of the patent right not because the other party litigation separately filed a patent infringement lawsuit by absorption. But in order to avoid the same fact case for repeated trial of different courts, the people's court shall transfer the case to the jurisdiction of the merger trial[35]." The two types of business secret cases, each other also cannot become the counter case, but in the presence of both sides are prosecuted the case, shall be transferred to the jurisdiction of the merger trial should be "."

Article 149th [] jurisdiction

149.1Because of confirming not tort litigation was characterized as infringement litigation, jurisdiction for the location or tort to the people's court.

149.2Notable is, not tort the right infringement behavior of a warning, but that was the right people warned tort. So the implementation of the plaintiff was warning of violations to the business secret is the infringement, the people's court which has jurisdiction. And tort, is often the place, so that most of the cases not tort litigation can be in the country of the claimant sued.

Article 150th [] with infringement warning

Business secret rights in cannot determine whether others infringed on its commercial secret infringement warning, should be used with caution. In a tort warning, failed to timely prosecution or withdraw the warning, there may be warned people where the prosecution confirming non infringing commercial secrets, and even filed lawsuits, but also to transfer a case before the court proceedings, caused translocation.

Article 151st [other] reference tort litigation

Confirmation of substantive issues not infringing trade secret litigation and other procedures, in addition to the plaintiff and the defendant role reversal, unlike commercial secret infringement proceedings not, therefore can refer to other sections of this chapter content.

The eighth chapter trade secret legal business

The first section of the administrative relief points

Article 152nd [Methods] of administrative remedy

The administrative department for Industry and commerce at or above the county level administrative law enforcement of the infringement of trade secrets, including making the administrative inspection, administrative punishment, administrative compulsory measures and to adjust the amount of compensation.

Article 153rd [Characteristics] of administrative remedy

Administrative remedy is to national public power to stop the infringement of commercial secrets, has the characteristics of convenient, efficient and economical, but also exist on administrative punishment is not mediation, to the full compensation, the judicial trial supervision etc..

Article 154th [] to determine jurisdiction institution

Infringement of commercial secrets, the place of tort at or above the county level administrative departments for Industry and Commerce of identification:

1. County (District), the city (the ground, city) administrative departments for Industry and commerce authority within the jurisdiction of the jurisdiction of cases occur;

2. Provinces, autonomous regions, municipalities directly under the central government, the administrative department for Industry and Commerce in accordance with jurisdiction over major, complicated cases occurred in this area;

3. The State Administration for Industry and commerce authority jurisdiction shall by their own implementation of major, complicated cases of administrative punishment cases and nationwide.

Article 155th [] jurisdiction disputes

155.1For the same illegal act of the party, more than two administrative authorities for Industry and Commerce have jurisdiction, the jurisdiction of the administrative authority for Industry and Commerce for the first.

155.2Two or more administrative authorities for Industry and commerce dispute jurisdiction, consultation, the consultation fails, by common administrative organ at the next higher level business designated jurisdiction.

Article 156th [case]

156.1The administrative authorities for Industry and Commerce found that the investigation of the case is not under its jurisdiction, it shall transfer the case to the administrative department for Industry and Commerce have jurisdiction. The administrative authorities for Industry and Commerce has been transferred objection to the jurisdiction of a court, shall be submitted to the common administrative organ at the next higher level business designated jurisdiction, and shall not transfer the case again.

156.2Superior administrative authority for Industry and Commerce deems necessary can be directly under the jurisdiction of the administrative authority for Industry and Commerce and the lower case, can also be its own jurisdiction cases over which the administrative department for Industry and Commerce jurisdiction.

156.3The lower the administrative organs of industry and commerce should be the cases under the jurisdiction of a major or complicated case, or due to special reasons, it is difficult to handle, can apply for a higher administrative department for Industry and commerce to determine jurisdiction.

156.4The cross Administration regional administrative punishment cases, their common superior administrative authority for Industry and Commerce shall do a good job of coordination. The relevant administrative department for Industry and Commerce shall actively cooperate with the land administrative department for Industry and Commerce in investigating the case.

156.5The administrative authorities for Industry and Commerce found infringement of business secret suspected of a crime, it shall transfer the case to the public security organ.

The second section as the right agent

Article 157th [the applicant qualification review]

157.1The administrative authorities for Industry and commerce can be found and dealt with in accordance with the terms of reference of infringing business secret illegal behavior, but usually through the acceptance of complaints, complaints, report a way to start the procedure of administrative remedy.

157.2Laws, administrative regulations and administrative rules not limited to complaints, complaints and whistle blowers qualification, but the request to the administrative department for Industry and Commerce and the infringing act, the applicant shall provide the existence of commercial secret and evidence of infringement.

157.3Due to the administrative department for Industry and Commerce infringing trade secret violations in the investigation, to cooperate with the investigation, and the main guarantee issued by the claim for compensation shall be the owner of a commercial secret, so the complaint, complaint or report the best is the right person or is it right to authorized person.

Article 158th [human rights] review commercial secrets

A trade secret:

See Chapter fourth - ninth.

Article 159th [sure] request

159.1The administrative authorities for Industry and commerce to infringement of trade secret violations to stop infringement and maintain order in the market for the purpose, the applicant complaints, complaints and report requests for administrative organ reference.

159.2The administrative punishment on violating commercial secrets: administrative relief procedures, the applicant may request the administrative authority in determining the infringement of commercial secrets after order the respondent to stop the illegal acts, including but not limited to the following two kinds of circumstances:

1. Ordering and supervising the infringer in commercial secret drawings, software and other related information returned to the right holder;

2. Supervise the infringer to destroy the right to use the commercial secrets of production, trade secrets into the market will result in public products, but excluding acquisitions, sales rights of people with other treatment methods.

159.3Administrative penalty in the infringement of business secret: administrative relief procedures, the applicant may request the administrative authority in determining the infringement of commercial secrets after impose a 10000 yuan more than 200000 fine.

159.4Administrative Mediation: the commercial secret infringement administrative relief procedures, the applicant may request the administrative authority for its damages to mediation.

159.5Compulsory measures: the respondent, the use of illegal disclosure, allowing others to use the business secrets will give owners of irreparable loss, right person may request the administrative authority for Industry and Commerce in making administrative penalty order the respondent to stop selling the right to use the commercial secret products.

Article 160th [report] the way choice

The administrative authorities for Industry and commerce to the complaint, complaint and report the way it is written the way can also be orally:

1. Writing a letter, telegram, fax, e-mail, other way;

2. Oral phone, oral etc..

Article 161st [material] to report

After the review, understanding and choice, lawyer could draft complaints, complaint or report for.

See Chapter sixth.

Article 162nd [] to the case

162.1The applicant to file a complaint, the administrative department for Industry and Commerce from receiving the complaint, complaint, report to the verification within seven working days as of the date of the material, and decide whether to put on record; under special circumstances, may be extended to fifteen working days to decide whether to put on record.

162.2For not filing complaints, complaints, report, is responsible by the Administration for Industry and Commerce approved by people, the agency will inform the complainant, named the complainant, accuser.

Article 163rd [with] of administrative investigation

163.1Application for withdrawal:

The applicant that has direct relation to the parties to determine the case handling personnel and the administrative authorities for Industry and commerce, have the right to apply for withdrawal.

163.2Provide truthful evidence:

The industrial and commercial administrative organs in the implementation of supervision and inspection, the applicant shall truthfully provide relevant evidence to the administrative department for Industry and commerce, and provided the material shall affix their signatures or seals.

163.3Interrogation record:

163.3.1The administrative authorities for Industry and Commerce investigators asked the parties, stakeholders and that person, it shall make a written record.

163.3.2Asked people have the right to check the record of inquiry, the record if errors, omissions, asked people have the right to correct or supplement, the correction should be by the inquired signature, seal or confirmed by other means.

163.3.3Certified by the person being interrogated, should the record page by page, a seal or signature confirmation in other ways, the case handling personnel shall also sign the record.

163.4The original evidence:

163.4.1The administrative authorities for Industry and Commerce investigators can query, copy with the case of agreements, account books, documents, records, documents, business letters and other materials.

163.4.2The collection, transfer and cases have difficulties original evidence related to, can extract copies, photocopies or copying this, providing evidence of people should be marked "by checking with the original certified", mark the date of credit, the source of evidence, and affix his signature or seal.

163.4.3For audiovisual materials, computer data collecting original hard evidence, can collect copies, and indicate the production methods, production time, producer, etc.. For audio materials shall be accompanied by the sound content written records.

163.5On site inspection:

163.5.1The administrative authorities for Industry and Commerce investigators may inspect the goods suspected of violating the law or places, and can take photos, videos, records the scene situation.

163.5.2The inspection should be the parties or third people present, making a record should be on-site inspection, specify the time, place, event, sealed by the case handling personnel, third people, the parties sign or.

163.6Sampling inspection:

The administrative authorities for Industry and Commerce may take samples as evidence, the party concerned shall be present at the time of sampling, the case handling personnel shall make records for sampling, sample affixed with seals, issue a list of items, by the case handling personnel and the parties in the seal and relevant record shall be signed or sealed.

163.7The entrusted authentication:

163.7.1Because of the specialization and complexity of the business secret case, the administrative department for Industry and Commerce of the authentication mode is often used for the commercial secret is known information and the respondent used information with the right person for the commercial secret is consistent or similar identification.

163.7.2By the identification agency should have intellectual property appraisal qualification or identification conditions, or seal identification conclusion should be signed and affixed with the identification, identification of mechanism seal.

163.7.3For the industrial and commercial administrative organs entrust appraisal item, the parties concerned shall cooperate actively, and to provide the corresponding data, for the identification of an adverse outcome, the parties may question and the reasons.

163.8The inversion of onus probandi:

The right people can prove to be used by the applicant information with their own business secrets is consistent or similar, at the same time can prove that the respondent has access to its trade secrets, and the applicant cannot provide or refuses to provide the information is acquired or used in a lawful evidence, the administrative department for Industry and commerce according to the the relevant evidence, that the respondent has tort.

Article 164th [results] issued compulsory measures to ensure

For applicant illegal disclosure, use, allowing others to use the business secrets will give owners of irreparable loss of human rights requirements, the administrative authorities for Industry and Commerce in making administrative penalty order the respondent to stop selling the right to use the commercial secrets of the production of products, shall issue a written guarantee assumed the responsibility of compulsory measures against the consequences of.

Article 165th [] put forward compensation Mediation Program

In the industrial and commercial administrative organ infringes on business secrets violations of human rights, trade secrets infringement on their own losses caused by the requirements of the administrative department for Industry and commerce, the amount of compensation for mediation, mediation, the administrative department for Industry and commerce is not successful, can be the amount of compensation be sued.

Article 166th [supervision] continuous infringement

To make the administrative punishment decision of the administrative authority for Industry and commerce, the lawyer shall supervise the execution of the penalty decision infringer, does not execute the punishment decision of the infringer refuses, continue to implement the violations of the rights of the commercial secrets of illegal behavior, a lawyer shall collect evidence to the administrative department for industry and Commerce report, the administrative department for Industry and Commerce will be regarded as illegal new, severely punished.

Article 167th [to] support the administrative organs

The respondent in the administrative penalty to request a hearing or respondent to apply for reconsideration or bring an administrative lawsuit in punishment, a lawyer shall recommend the applicant to participate in the hearing, reconsideration or bring an administrative lawsuit to the identity of the third, with law enforcement activities in support of the administrative authority for Industry and commerce, safeguard their legitimate rights and interests.

The third section as the respondent's agent

Article 168th [report] the existence of defects

Lawyers acting for violating commercial secrets of administrative cases by the applicant, should inspect whether the report object error exists, the existence of false report; examine cases under the jurisdiction of the existence of defects, for the case to be transferred to the jurisdiction of the administrative organ shall also be investigated; for their qualifications as well as proof of business secret evidence.

Article 169th [] identify coping strategies

Lawyers acting for the applicant, should be a concrete analysis of the case, select the following scheme:

1. After the judgment constitutes infringement, should find the relevant statutory and discretionary reduction or exemption from legal basis for punishment, and on the question of compensation and the right to negotiate.

2. After the judge did not constitute infringement, actively collect evidence, to prepare a defense materials, report to the administrative department for Industry and Commerce statement.

Article 170th [for] reduces the punishment basis

The applicant is trade secret violations of human rights, a lawyer shall help the applicant to receive a lighter, mitigated or exempted from administrative penalties in the following circumstances:

1. Take the initiative to eliminate or reduce the harmful consequences of violations;

2. If you are looking for is by others engaged in illegal behavior in stress;

3. With a meritorious service administrative organs in violation of law;

4. The other shall be given a lighter or mitigated administrative punishment.

5. If the violation is minor and corrected in a timely manner, causing no harmful consequences.

Article 171st [reason] be submitted

The lawyer was whether the applicant to constitute an infringement to judge according to their own experience and knowledge, and should be based on the actual situation to the administrative department for Industry and Commerce written statements and arguments not tort or infringement but may be given a lighter, reduction and exemption from punishment for.

Article 172nd [reconciliation compensation scheme]

If the business secret the respondent behavior have violated human rights, lawyers should also be recommended by the applicant requests the administrative authority for Industry and commerce to preside over the mediation, negotiation and human rights compensation scheme.

Article 173rd [proposal was the applicant to request a hearing]

Due to the infringement of trade secret violations penalties involved in order to suspend production or a larger amount of fines, lawyers shall advise the respondent actively to request a hearing, the administrative organ for a persuasive opportunity, to obtain non infringement or lighter, mitigated punishment or be exempted from punishment decisions.

Article 174th [] the administrative reconsideration and the administrative litigation

For do not constitute infringement behavior of business secret, the lawyer can be the applicant according to the facts and reasons, actively preparing evidence, fully demonstrate the scheme, to the administrative department for Industry and Commerce made the punishment decision made within 60 days after the administrative reconsideration or bring an administrative lawsuit in three months.

The ninth chapter trade secret criminal legal services

The first section criminal relief points

Article 175th [Methods] criminal relief

175.1Violation of "law" in article 219th, trade secret violations of the rights of human rights, caused a serious loss to the following behaviors can take criminal relief way of protecting commercial secrets.

1. By stealing, luring, coercion or any other improper means to acquire the business secrets of the right owner;

2. Disclosing, using or allowing others to use the means of obtaining previous business secrets of the right owner;

3. Violating the agreement or the rights of people's request of keeping the commercial secrets, disclosure, use or permit others to use the business secret;

4. Who knows or should know the behavior of listed the first three, access, use or disclosure of trade secrets of others, to the infringement on commercial secrets.

175.2Take the way of public prosecution, private prosecution of criminal relief including.

Article 176th [Characteristics] criminal relief

Punishment is a strong deterrent, criminal remedy is the protection of commercial secrets of the most stringent measures, has an important role for the sanctions and prevention of infringement of commercial secrets.

Article 177th [] reporting requirements

In the report before the need to achieve the following preliminary evidence:

1. The effective evidence for the existence of the business secret, and clear writing the commercial secrets of the content, scope and secret;

2. The preliminary evidence to prove the criminal suspect contact business secret;

3. At least one of the following circumstances evidence proof:[36]A) to the business secret right the damages in the amount of five hundred thousand yuan, b) due to the violation of trade secret illegal income amount is in five hundred thousand yuan of above, c) in the commercial secrets of bankruptcy, d) for other business secret rights caused a serious loss;

4. If the accused of illegally using its trade secrets, should also provide criminal suspects the preliminary evidence of commercial secrets.

Article 178th [] to determine jurisdiction institution

178.1Trade secret criminal case crime, crime by the public security organs and the suspect residence jurisdiction.

178.2The crime refers to the infringement of business secret behavior, including:

1. The theft and other improper means to obtain commercial secrets of others, and to disclose, use the means of obtaining commercial secrets of the implementation;

2. To provide convenient conditions for implementation of joint crime;

3. Through the network dissemination, disclosure of business secrets of others, computer terminal from the information for the location of the implementation, terminal location cannot be ascertained, the implementation of network server for more;

178.3Crime results refers to the crime is a direct result of the rights of people, can not think of a loss, will be its location as a crime results.

Article 179th [determination of infringing business secrets are also violate other laws]

179.1Theft: for illegally obtained commercial secrets of others, theft of property, such as: theft of commercial secrets of the computer storage equipment carrier, at the same time committing theft;

179.2The crime of illegal business operations: State-Owned Company, enterprise's board of directors, the manager took advantage of his position to facilitate, illegal use of all units of the commercial secrets of his business or for other business operators and service companies, business similar to the business, at the same time committing the crime of illegal business operations;

179.3Sabotage production, business crime or intentional destruction of public or private property crime: destruction of commercial secret carrier, also violated the damage production, operation of the crime or the deliberate destruction of public or private property crime;

179.4Violating the espionage or divulging State Secrets: theft of commercial secrets and other acts, and "criminal law" in violation of article 110th, the provisions of article 111st, also violated the espionage or divulging State secrets.

Article 180th [] to assist with the judicial organs

Report after the rights should assist and cooperate with the public security organs, procuratorial organs confirm the business information constitute trade secrets; ascertain the infringer infringement; right to collect evidence by the loss of the convictive standard for the tort, on the need to entrust appraisal institutions appraisal to the secret and consistency and the amount of loss should be positive fit.

The second section as the agent

Article 181st [accept authorization, entrust formalities]

Should be in the report, investigation, prosecution, trial, appeal, appeal each stage separately entrust formalities, you can sign the entrustment agreement, but should be phased signed power of attorney.

Article 182nd [] to understand the

We should understand the rights of human subject, criminal suspects, commercial secret infringement subject content, commercial secret infringement formation process, the concrete behavior, subjective intention, the consequences have reached the standard of conviction.

Article 183rd Understanding the business secret [range]

Understanding the business secret the content and the scope is very important, related to the action plan of the whole case. Therefore, attention should be given:

1. Scope of business secrets should not be too wide, to avoid the suspect is not informed of the commercial secret;

2. Scope of business secret also shoulds not be too narrow, and not submit the commercial secrets shall be submitted on content, may cause the rights are not protected.

Article 184th [] understanding of business secret point

Secret information involved in the business is often messy, scattered, numerous, require the parties according to highlight key constitutes a trade secret, summed up the commercial secrets may be violated.

Article 185th [the parties to determine the scope of the assistance business secret and the secret bit]

185.1The parties in the report to the public security organs, the public security organs will be required to determine the content and scope of business secret, the content and the scope that inappropriate may not protected by law.

185.2A lawyer should comprehensively expounded infringement information requested, assist the parties to analyze a large amount of information involved, refines the parties considered trade secret information; then the analysis of the characteristics of the commercial secret, see whether accord with all the features of the commercial secret; the most determined to submitted to the public security department is the infringement of trade secret information we should request the parties to confirm.

185.3Sometimes the commercial secrets of the parties concerned are not leaked, to prevent the disclosure of commercial secrets two times in the claim, it can gradually disclosure and that its business secret. But must pay attention to keep the commercial secrets of the supplemental claims before the suspect's information that already have evidence.

Article 186th [secret] valid evidence

The business secret legal and valid evidence mainly include the following:

1. The right to the main basic information;

2. The carrier of business secrets, the concrete content and the R & D process etc.. As a commercial secret documents, computer software, audio and video tapes, samples, technical documents and drawings, business information, the relevant departments of the retrieval report, such as identification of the conclusions;

3. The business value of the secret documents, such as capital investment, evaluation report;

4. The relevant security measures such as the use of secret evidence, technical measures of computer software, security, confidentiality agreement or clause of human rights;

5. The right to use commercial secret evidence.

Article 187th The subject of the crime [evidence]

187.1The suspect is a natural person, the main evidence includes: booklet, identity cards, card soldiers, military ID, passport or certificate of foreign status of valid identity certificate materials etc..

187.2The suspect as a unit, the main evidence includes: business license, the enterprise legal person business registration certificate, non legal entity certificate, corporate tax registration certificate and the unit code certificate.

187.3To prove the directly responsible personnel in charge and other directly responsible personnel basic situation, main evidence including: license valid personal identity documents, the relevant personnel of the enterprise or any other legal instrument on legal representative and other directly responsible personnel records, appointment, the appointment book unit, responsible for the responsibility, authority proof materials etc..

187.4Distinguish between unit crime and natural crime is very important, it relates to the crime problems, behavior form.

187.5Unit and natural person (not including the unit directly responsible personnel in charge and other directly responsible personnel) of common crime, the total units and natural persons to be responsible for the loss.

Article 188th [by the trade secret infringement has secretly evidence]

Secret evidence includes: defining the business expert opinion, science and technology departments, scientific and technological information report, identification of scientific and technological achievements into the secret book, establishment of verdict, right R & D process data, report etc..

Article 189th [that the business secret has value and practical evidence]

Using the already batch production of the product's commercial secrets has practicability and value. Has not yet been put into production, sales, trade secret, should prove its actual or potential commercial value, can bring the competitive advantage for the rights of people.

Article 190th [the rights of people to take measures to protect the business secret evidence]

The rights of people to take measures to protect the business secret evidence includes: confidentiality system, confidentiality agreement, the rights of the secret book, the trade secret information security management system is divided, information issue system, the responsibilities and management system, Office Area management system, drawing system, training system, computer passwords, security device, electronic monitoring device, storage of commercial secret information and use of control measures, and the third party signed cooperation contracts for technology development, technology transfer contract, the contract entered into a confidentiality clause.

Article 191st [crimes] evidence

191.1Suspects using improper means to obtain the trade secret owner evidence: including theft, bribery, bribery, coercion, misrepresentation, violation or inducing breach of confidentiality, or by electronic or other means are evidence of espionage, commercial secret evidence to contact the trade secret owner people through memory or other means of reproduction or use the rights of the people.

191.2The abuse of illegally obtaining commercial secrets: including evidence disclosure of evidence obtained by illegal means of trade secrets; the use of improper means to obtain commercial secret; business secret evidence to license others to use access through improper means.

191.3The abuse of legal evidence obtaining commercial secrets: Although suspects legitimate master of trade secret rights, but the confidentiality obligations, the violation of the agreement or violation of human rights on the security requirements of illegal use of business secrets of the right owner also constitute the crime of infringing trade secrets. The main collection of criminal suspects have the trade secret owner evidence, confidential evidence and illegal evidence. Secret information on the information with the right person suspects using the same or similar difficult to determine whether should entrust appraisal department identification.

Article 192nd [the suspect contact preliminary evidence of commercial secrets of the victim's]

Preliminary evidence includes: commercial secret evidence obtaining in the victim work units and contact business secret, participate in R & D, contact business secret, through business cooperation talks through the contract between the contact of trade secrets, illegal means.

Article 193rd [prove the criminal suspect subjective fault]

193.1The suspect knows or should know the relevant information is a commercial secret, they do not have the right to use or disclose, allow others to use or disclosure and still use the disclosure or allow others to use disclosure.

193.2Deliberately take improper means to obtain commercial secrets.

Article 194th [evidence the case to the public security organs shall file]

Because of the public security organ may advise the parties of private prosecution, the report submitted as far as possible the following case materials:

1. Particularly serious crime, evidence material loss of particularly large, endanger public interests;

2. Although there is evidence for the existence of human rights, or the situation the agent because of objective reasons cannot collect description.

Article 195th [] the evidence standard of conviction

195.1The loss of the right people should be decided according to the tort case considering different, should collect the following evidence when collecting evidence:

1. Commercial secret development cost, maturity, business secret utilizing period, whether can be reused, commercial secret and the use of products in the market supply and demand situation;

2. The market value of the business secret, commercial secret license usage;

3. Human rights lead to a reduction in income from the infringement, such as specific customer orders to suspect, sales delivery or incremental reduction amount, was forced to cut prices to reduce income etc.;

4. The suspect uses the trade secret owner benefits, the benefits of trade secret suspects transferred.

195.2Determine the calculation mode according to the actual situation of the infringement, the calculated losses or profits of the infringer shall meet or exceed 500000 yuan.

Article 196th [report "written materials and commercial secrets of the statement"]

196.1The report materials mainly include:

1. The basic situation of human rights and criminal suspects;

2. "Trade secrets" statement;

3. Suspect infringement of commercial secrets of the basic situation;

4. Loss and the consequences of human rights etc..

196.2"Statement" commercial secrets shall include the following:

1. Time and process of formation of commercial secret;

2. The content and scope of business secret;

3. Research and development costs, the market value of commercial secrets, licensing conditions;

4. The right to take security measures;

5. Right to benefit and competitive advantage etc..

Article 197th Appraisal.

197.1The difficult that can assist the public security organs entrusted appraisal organs were identified:

1. Human rights advocates the commercial secret is not known to the public;

2. Business secrets of the right owner information and criminal suspects access to information or use the consistency;

3. The value of business secret;

4. The loss of the right people.

197.2Identification does not respond to the following legal issues:

197.2.1The business secret constitution;

197.2.2Suspect whether acts constitute infringement of business secret.

197.3Any of the following circumstances, should be applied for the identification of human complement identification:

1. The discovery of new materials may affect the identification results;

2. There are omissions in the original authentication;

3. The original identification document of identification requirements reply is not complete.

Article 198th [apply for security and not a public hearing]

198.1Business secret cases should be in the report, investigation, prosecution, trial, appeal, appeal to the judicial organ for each stage of secret evidence materials and other materials;

198.2In the phase of the trial shall be submitted to the court is not a public hearing;

198.3Request the court to be omitted the content of commercial secrets in the judgment and other legal documents, to avoid the two disclosure of commercial secrets.

The third section as criminal human agents

Article 199th [Characteristics] private prosecution

The criminal private prosecution has the following characteristics:

1. Compared to the case of public prosecution has strong independence;

2. Defendant counterclaim;

3. The private prosecutor and defendant can reconciliation, mediation, can withdraw the prosecution;

Article 200th [is] the private prosecution

The criminal cases of infringing upon business secret can choose private prosecution way:

1. The victim has evidence to prove that they are minor business secret criminal cases;

2. The victim has evidence to prove that the defendant violated their trade secrets, shall be investigated for criminal responsibility according to law, and the public security organ or the people's Procuratorate shall not be subject to criminal liability of the defendant's case.

Article 201st [] of the conversion of private and public prosecution

Find the following situation in private prosecution process, should be transferred to public security organ for investigation into a case of public prosecution:

1. Business secrets infringement serious harm to social order and national interest;

2. The evidence can prove existence of Trade Secrets Tort, and private prosecution because of objective reasons can not be collected;

3. The defendant may be sentenced to three years in prison for the penalty.

The fourth section as a defense of the criminal suspect, defendant's agent who

Article 202nd [meeting]

The lawyer entrusted, shall as soon as possible to listen to the statements of the parties and the excuse, understand the victim claims involving commercial secrets of the content, scope, understand client master controlled commercial information content, range, origin, formation process, as well as experts in the field of.

Article 203rd [consult, extract, copy the case materials]

According to the phase of legal rights, to understand the case, consult, extract, copy the relevant documents relating to the case materials.

Article 204th The application for investigation and collection of evidence []

A lawyer should apply for the investigation and collection can prove that the defendant not guilty evidence. For example: not a commercial secret evidence; the party has controlled commercial information right evidence; no evidence of infringement; does not meet the basic evidence standard of conviction.

Article 205th [made] expert support

Commercial secret involving relatively strong professional, should invite the expert help, through the expert finding evidence, also can hire experts to participate in the litigation activities.

Article 206th [] to apply for re identification

Have objections to the evaluation report, report on the identification of any of the following circumstances, may apply for re identification:

1. Identification of human or authentication institution does not have the relevant expertise qualification;

2. The identification procedure does not comply with the provisions of the law;

3. Expert conclusions and other evidence is contradictory;

4. Identification on the basis of a false, or the original identification methods have defects;

5. Identification of human should be avoided without avoidance;

6. The same case with a plurality of different appraisal conclusion;

7. There is evidence of the existence of factors affect the identification of the precise identification.

Article 207th [confrontation of the appraisal report]

Identification report to consider the evidence from the following aspects:

1. Identification of human and have a stake in this case;

2. Identification of human or the appraisal institutions have the identification of qualification corresponding;

3. Identification of human is influenced by the outside;

4. Identification of the basis material is fully or objective;

5. Device, method, the identification process in compliance with the technical standards and technical specifications;

6. Identification of the process is legitimate;

7. Conclusion whether or not with other evidence for the existence of contradiction.

Article 208th [for] the appraiser

Application of expert witnesses to lawyers to fully understand the professional issues and details report, find out the evidence from the reason of.

Article 209th [Defense] used

Justification of commonly used are the following categories:

(1) the information does not have the statutory conditions, not a commercial secret;

(2) the victim has no legal right to the information;

(3) the information through open channels without the need to pay a certain cost and easy access;

(4) the defendant is through their own research, or intelligence analysis to obtain the information;

(5) the defendant is to obtain the information through reverse engineering;

(6) the secret information and the defendant used the identical or similar;

(7) the defendant has legal rights to use information; such as legal, legitimate to accept the license, purchased goodwill for.

(8) the victim knowing that the defendant has been allowed to exercise their rights or slack;

(9) the defendant does not know where the information came from illegal, no violations of the rights of the commercial secrets of fault;

(10) losses did not reach the standard of conviction;

(11) the defendant's personal circumstances, can according to the specific circumstances of unit crime to defense;

(12) the commercial secret information content to the public security organs before contact with the secret information, the defendant's business, but not confirmed contact the defendant's commercial secrets has become one of the legitimate right of commercial secret.

Article 210th [] mediation

In the case of private prosecution, can seek and the private prosecutor in an out of court settlement or mediation agreement is reached with the private prosecutor.

The tenth chapter ofThen

Article 211st [effect] basis

This guideline according to June 30, 2010 previously released laws, regulations and judicial interpretation of the provisions, combined with the judicial practice and law practice writing. Lawyers for specific operations should also give full attention to case fact, provincial regulations and new laws, regulations and judicial interpretation.

Article 212nd [effect] guidelines

This guideline is not mandatory, as a reference for a lawyer to handle the legal trade secret business.

Article 213rd [] applicable guidelines and guide

The operating guidelines for general guidance, specific details please see the "lawyers for legal business of commercial secret operations guide" (tentative name) a book.

Article 214th [create]

Joint creation of this guideline by the all China Lawyers Association Professional Committee of the intellectual property rights of the Beijing Lawyers Association competition and anti monopoly Law Affairs Specialty committee. Authors: Zhang Li, Chang Fengshu, Li Wei, Ma Dan plain, Dongxiao, Lu Zuning (according to the work of writing order ranking).

Article 215th [through]

The operational guidelines by the all China Lawyers Association, the Executive Council for review by.

[1]"The people's Republic of China on Anti Unfair Competition Law" article tenth

[2]The Supreme People's court "Several Issues Concerning Application of law in Civil Cases Involving Unfair Competition explanation" article eleventh

[3]For licensed commercial secrets of the citizen, legal person or other organization, can be called "trade secrets", the theory circle has dispute. These guidelines are collectively referred to as the owner of a commercial secret.

[4]The Supreme People's court "Several Issues Concerning Application of law in Civil Cases Involving Unfair Competition explanation" article twelfth

[5]The Supreme People's court "Several Issues Concerning Application of law in Civil Cases Involving Unfair Competition explanation" article ninth

[6]Data show that, after the technical information expert or relevant departments with higher value.

[7]"Company law" article eighteenth

[8]"Labor contract law" article fourth

[9]"Notice" opinions on strengthening science and technology in the flow of personnel management of technical secret third

[10]"Notice" opinions on strengthening science and technology in the flow of personnel management of technical secret fourth

[11]The Supreme People's Court on the room: "understanding and application of intellectual property judicial interpretation", Law Press, 2009 October first edition, P316.

[12]See Kong Xiangjun "trademark and unfair competition law principle and precedent", publishing house of law, 2009 first edition in July, P821 823.

[13]The Supreme People's court "on hearing the law applicable to a number of dispute cases of technology contract explanation" article eleventh paragraph second.

[14]The Supreme People's court "on hearing the law applicable to a number of dispute cases of technology contract explanation" article sixteenth paragraph first.

[15]The Supreme People's court "on hearing the law applicable to a number of dispute cases of technology contract explanation" article twenty-second paragraph third.

[16]Zhang Yumin: "intellectual property law", Renmin University of China press, 2009 June first edition, P447.

[17]Jiangsu Province Higher People's court "about the trial of cases of commercial secret opinion" fourth.

[18]"The Supreme People's Court on the law applicable to a number of dispute cases of technology contract interpretation of" forty-fifth

[19]"Contract law" article 329th

[20]See "Guangdong Province technology secrets protection regulations" article sixteenth

[21]"Company law" on the board, senior management personnel of the strict limit, the word is "Prohibition", but this article unified as "Prohibition of business strife".

[22]The Supreme People's court in 2010 April release of "the Supreme People's Court of intellectual property cases," 40 annual report on the basis of the labor contract or confidentiality provisions on limitation of competition to commercial secret infringement jurisdiction.

[23]Tianjin Municipal Higher People's Court on April 11, 2007 issued the "trial of infringing trade secret disputes seminar" tenth.

[24]The Ministry of labor and social security issued in July 7, 1999 "involving commercial secrets infringement problems about the labor dispute cases in the letter" (labor agency letter (1999) No. 69).

[25]Tianjin Municipal Higher People's Court on April 11, 2007 issued the "trial of infringing trade secret disputes seminar" thirteenth.

[26]"The Supreme People's Court on evidence in civil litigation provisions" thirty-third

[27]"The Supreme People's Court on evidence in civil litigation provisions" thirty-third

[28]"The Supreme People's Court on evidence in civil litigation provisions" fiftieth

[29]The Supreme People's court "Several Issues Concerning Application of law in civil cases involving unfair competition to explain" the first paragraph of article seventeenth.

[30]The Supreme People's court "Several Issues Concerning Application of law in Civil Cases Involving Unfair Competition" in the second paragraph of the interpretation of seventeenth.

[31]The Supreme People's court "Several Issues Concerning Application of law in Civil Cases Involving Unfair Competition explanation" article eleventh.

[32]The Supreme People's court "Several Issues Concerning Application of law in Civil Cases Involving Unfair Competition explanation" article ninth

[33]The Supreme People's court "Several Issues Concerning Application of law in Civil Cases Involving Unfair Competition explanation" article thirteenth

[34]Notice of the Supreme People's Court on Honda giken kogyo and Shijiazhuang Shuanghuan automobile Limited by Share Ltd, disputes of patent Beijing Xu Yanghengxing trade limited company designated jurisdiction ([2004] min three He Zi No. fourth)

[35]Ditto.

[36]"Regulations on the jurisdiction of the public security organ criminal prosecution standard (two") seventy-third.