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How to prevent trade secret infringement

Author of this article: attorney of Win and Win Law Firm

Trade secret infringement is gradually increasing, which has made it impossible for enterprises to prevent. Trade secret refers to the technical information and business information that is not familiar to the public, can bring economic benefits to the obligee, has practicability and has been kept confidential by the obligee, mainly business secrets and technical secrets. The former includes customer list, transaction documents, contracts, etc., while the latter includes design, procedure, product formula, manufacturing process, etc.

In fact, many trade secrets are leaked after employees leave or change jobs. Employees disclose the key information of the enterprise and use it for the operation of the new company by privately taking out the confidential materials of the unit and copying the confidential materials of the unit. There are numerous examples in the current cases involving commercial disclosure.

Once the trade secret is leaked, how should the enterprise deal with it? At present, some enterprises choose to sue the infringer and ask the other party to stop the infringement. According to the provisions of the anti unfair competition law, trade secrets are technical and business information that is not known to the public, can bring economic benefits to the obligee, has practicability and has been kept confidential by the obligee. This means that according to the principle of proof, the obligee must prove that the information cannot be obtained through public channels. Compared with the infringer, the burden of proof of the obligee is obviously heavier. According to the interpretation of the Supreme People’s Court on Several Issues concerning the application of law in the trial of civil cases of unfair competition, if a party alleges that others infringe on its trade secrets, it shall bear the burden of proof for the fact that the trade secrets it owns meet the legal conditions, the information of the other party and its trade secrets are the same or substantially the same, and the fact that the other party adopts improper means.

To prevent the leakage of trade secrets, on the one hand, we should plug the “loopholes” in the management of trade secrets, establish and improve the organizational system and measures for enterprises to protect trade secrets, divide the trade secrets into several parts and master them by different personnel, so the probability of being leaked or stolen will be much lower. On the other hand, it is necessary to sign confidentiality agreements with secret related employees, such as not using the company’s trade secrets to establish their own enterprises, or using the trade secrets to work for competitive enterprises, and the confidentiality agreements will remain valid for a certain period of time after the employee leaves office.

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