64 ASIAN LEGAL BUSINESS CHINA • 亚洲法律杂志-中国版 OCTOBER 2023 case3 of dispute over trade secret infringement between Huayang Emerging Technologies (Tianjin) Group Co., Ltd., Mechdarecare (Tianjin) Technology Co., Ltd., and Wang XX, the Supreme People’s Court determined that the customer information involved was not a trade secret as it was merely a general list of customers without further details, such as specific trading habit, intention and other information of the relevant customers. The key to determine the secrecy of customer information is to determine whether or not the customer list includes detailed information that are unknown to the public. (ii) How to determine the secrecy of sorted, improved and processed public information To determine the secrecy of trade secret, it’s necessary to distinguish between the constituent parts of the information and the information with various well-organized parts. Though the constituent parts of the technical information or business information may have gone to public, the new information obtained from sorting, improvement and processing of such public information may also be secret and not be known to the public. For example, with regard to the case4 of dispute over technical secret infringement between Beijing Semiconductor Special Equipment Research Institute, Gu Haiyang and others, the Supreme People’s Court pointed out that “even if part of the technical information in the drawing has been published, the new information obtained after sorting, improvement and processing as well as combination and compilation of the public information by the information holder may not be easily accessible and, upon taking confidentiality measures, may also be considered technical secret subjected to legal protection.” (iii) Comparison between the secrecy of trade secrets and the inventiveness and novelty of patents In judicial practice, the secrecy of trade secrets is often confused with the inventiveness and novelty of patents. However, patent and trade secret systems are different in the legislation value orientation, the way of obtaining rights and the intensity of right protection, and are therefore of different criteria in determining the protected objects as well as in determining the secrecy of trade secrets and the inventiveness and novelty of patents. For example, with regard to the case5 of dispute over trade secret infringement between Henan Zhonglian Thermal Science Industrial Energy Saving Co., Ltd., a certain equipment company based in Henan and Gou XX, et al, Zhengzhou Intermediate People’s Court pointed out, “to ensure inventiveness and novelty, a patent shall be of distinctive characteristics and be remarkably improved from the technologies published and used at home and abroad prior to the date of patent application; however, to ensure the uniqueness (secrecy), a trade secret only has to be slightly different from the common knowledge of certain field and is not a common knowledge that is widely known in the relevant trade. II. Requisites to Confidentiality Trade secret shall be the information for which the right holder takes confidentiality measures. Provisions on Several Issues Regarding Applicable Law for Trying Civil Cases of Trade Secret Infringement provides how to determine whether or not the right holder has taken corresponding confidentiality measures in Article 5 and enumerates specific circumstances in which the confidentiality measures have been taken in Article 6. The paper outlines the two major complicate circumstances under which the confidentiality is determined in the judicial practice: (i) How to determine whether or not confidentiality measures have been taken for products in market circulation For the technical information carried by products in market circulation, the corresponding confidentiality measures shall be able to prevent any third party from obtaining its technical secrets through reverse engineering. Such prevention can be achieved by at least two means: 1) ensure that the nature of the technical secret shall prevent others from obtaining the technical secrets by analyzing the products carrying the technical secrets even if they are dismantled; 2) physical confidentiality measures shall be taken to prevent reverse engineering, for example, an integrated structure is adopted to ensure that technical secrets will be destroyed if the product is dismantled. With regard to the case6 of dispute over technical secret infringement where Jinan Sike Testing Technology Co., Ltd. was the plaintiff and Jinan Languang Electromechanical 3 Supreme People’s Court (2019) SPC Min Zai No. 268 Paper of Civil Judgement 4 Supreme People’s Court (2021) SPC Zhi Min Zhong No. 2526 Paper of Civil Ruling 5 Zhengzhou Intermediary People’s Court (2019)Yu 01 Zhi Min Chu No.324 Paper of Civil Ruling 6 Supreme People’s Court (2020)SPC Zhi Min Zhong No.538 Paper of Civil Judgement Chapter 2
RkJQdWJsaXNoZXIy MjA0NzE4Mw==