Article source: Official website of Business School magazine, a think tank of China Economic Media.

What is a trade secret? According to Article 9 of the Anti Unfair Competition Law of the People's Republic of China, trade secrets refer to technical information, business information, and other commercial information that is not known to the public, has commercial value, and has been subject to corresponding confidentiality measures by the rights holder. In the commercial society, intellectual property has become one of the core elements of enterprise competitiveness. However, the protection of intellectual property, especially trade secrets, still faces many challenges.

As an important component of intellectual property rights, trade secrets exhibit the characteristics of "three difficulties" in judicial practice in cases of infringement, namely, difficulty in defining, difficulty in obtaining evidence, and difficulty in jurisdiction. These three difficulties not only test the professional ability of lawyers, but also put forward higher requirements for judicial organs. What are the difficulties of the "three difficulties"?

1、 Difficult to define

In practice, the ambiguity of the connotation and the broad extension of "trade secrets" determine the difficulty in defining trade secrets. According to the definition of "trade secret" in the Anti Unfair Competition Law of the People's Republic of China, the definition of trade secret mainly considers three elements, namely secrecy, value, and confidentiality. To apply these three points specifically to the field of criminal justice, firstly, confidentiality corresponds to "not being known to the public", which requires that the information requested for protection by the rights holder is not widely known or easily accessible to relevant personnel at the time of the criminal act. This involves which specific information of the infringed company has been clearly classified as trade secrets, and what effective protective measures have been taken for this classified information. Among them, the identification of technical information often requires professional opinions from people with specialized knowledge, and may need to be further clarified through technical appraisal when necessary. For the identification of customer information, it is necessary to examine the uniqueness, depth, and stable transaction relationship between the rights holder and the customer. Secondly, the definition of commercial value is mainly based on a comprehensive consideration of the company's research and development costs, expected returns, actual losses, and other factors. According to Lawyer Wu, the commercial value in general cases is mainly reflected in the amount of the crime, which can be divided into two aspects in the crime of infringing trade secrets: the actual losses of the company and the illegal gains of the infringer. Finally, regarding the determination of "corresponding confidentiality measures", this requirement emphasizes that the right holder takes confidentiality measures for the requested information at the time of infringement, and whether the measures are specific and effective enough to prevent the information from being stolen or disclosed.

2、 Difficulty in obtaining evidence

In the field of intellectual property protection, due to the confidential nature of trade secrets, it is impossible to prove the "exclusive" nature of rights like copyrights, trademarks, and patents. At the same time, the rights holders have imperfect confidentiality systems for trade secrets, unclear confidentiality content, and inadequate confidentiality measures, which make it difficult to obtain evidence in related infringement cases. Based on the concealment of infringement behavior, it is often difficult for the rights holders to provide direct evidence to prove infringement behavior. In judicial practice, in common cases of infringement of business information, trade secrets are often presented in the form of customer lists, sales strategies, and core business technologies. The commercial value of customer lists and the stability of relationships between rights holders and customers are often key points for evidence collection; In common cases of infringement of technical information, based on the strong professionalism of technology, in defining secret points, especially in identity comparison, professional appraisal reports and evidence forms of hiring professionals to issue written reports will be more convincing. In relevant cases, it is often difficult to prove under what circumstances the public is not aware of, and it is also difficult to obtain evidence from the front. At this time, we need to find effective breakthrough points based on the actual situation of the case

3、 Difficulty in jurisdiction

The issue of jurisdiction over criminal cases is also a difficult point in cases of infringement of trade secrets. Due to the fact that in the crime of infringing on trade secrets, the criminal act may involve multiple locations where the criminal act occurred and where the criminal result occurred, among which the location where the criminal act occurred may also give rise to the location where the criminal act was committed, as well as the location where it was prepared, started, passed through, and ended; The place where the criminal results occur will give rise to multiple regions such as the actual place of acquisition, hiding place, use place, and sales place of the criminal proceeds. This will raise an important issue, which is that a trade secret crime case involves public security organs in different regions, and different public security organs may have jurisdiction. The intersection of jurisdiction may lead to a "power vacuum" in jurisdiction, where public security organs in different regions believe that choosing another region for jurisdiction is more conducive to investigating the case, or that the case should be handled by another regional public security organ, resulting in an increase in the difficulty of handling the case, "said lawyer Wu Xiaohui.

  The standard for filing the crime of infringing on trade secrets is: causing losses of more than 300000 yuan to the right holder of trade secrets; Obtaining illegal gains of over 300000 yuan due to infringement of trade secrets; Directly leading to the bankruptcy or closure of the rights holder of trade secrets due to significant business difficulties; Other situations that cause significant losses to trade secret rights holders.

Although the difficulties of trade secret infringement cases are complex, breakthroughs can be effectively achieved through professional legal services and accurate judicial interpretations. At the same time, enterprises should also strengthen internal management, pay attention to clarifying the definition of trade secrets and providing relevant protective measures to reduce the risk of infringement and effectively protect their rights after infringement.