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What are the legal elements that constitute a trade secret?

Release Time：

2023-03-21

A: Trade secret is an important object of intellectual property and the key to stand out in the fierce market competition. Article 9 (4) of China's Anti-Unfair Competition Law stipulates: "The term" trade secret "as used in this Law refers to technical information, business information and other commercial information that is not known to the public, has commercial value and has been subject to appropriate confidentiality measures taken by the right holder. Accordingly, trade secrets can be roughly divided into technical secrets and business secrets, the former refers to the technology-related structure, raw materials, components, formulas, materials, samples, patterns, plant new varieties propagation materials, processes, methods or their steps, algorithms, data, computer programs and related documents and other information; The latter refers to the creative, management, sales, finance, plans, samples, bidding materials, customer information, data and other information related to business activities.

Whether it is a technical secret or a business secret, it should meet the requirements of confidentiality, confidentiality and value.

The so-called secrecy means that it is not widely known and easily accessible to the relevant personnel in the field. Under normal circumstances, the following circumstances will be identified as not meeting the requirements of confidentiality: (1) the information in the field of general knowledge or industry practice; (2) The information only involves the size, structure, materials, simple combination of components and other contents of the product, and relevant personnel in the field can be directly obtained by observing the listed product; (3) The information has been publicly disclosed in public publications or other media; (4) The information has been disclosed through public reports, exhibitions, etc.; (5) Relevant personnel in the field can obtain the information from other public channels.

The so-called confidentiality refers to the reasonable protective measures taken by the right holder to prevent information leakage in accordance with its commercial value and other specific circumstances. In judicial practice, the court will determine whether the right holder has taken confidentiality measures according to the characteristics of the information carrier involved, the right holder's willingness to keep secrets, the degree of recognition of the confidentiality measures, the degree of difficulty for others to obtain them through proper means and other factors. For example, limit the scope of knowledge of classified information, and only inform the relevant personnel who must know its content; Take locking and other preventive measures for the carrier of classified information; The carrier of classified information is marked with a security mark; Using passwords or codes for confidential information; Sign a confidentiality agreement; Restrict visitors or put forward confidentiality requirements for confidential machines, factories, workshops and other places.

The so-called value means that the relevant information has realistic or potential commercial value, which can bring competitive advantages to the right holder.

The "three characteristics" of trade secrets need to be proved by the parties in the case through evidence. Only when the court determines that the "three characteristics" are met, will the information involved in the case be identified as a trade secret. Source: Intellectual Property Beijing

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