How to Understand “Not Known to the Public” in Trade Secret Cases by China Law?

By Luo Yanjie

Trade secret must be “secret”, a message must be “non-public” for being trade secret. Generally speaking, Information or technique is not generally known for the public and cannot be directly obtained from the open channel. Today we would like to share the topic in China law with readers as follows:

I. The definition of “non-public” in the judicial interpretation

<Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Law in Hearing Civil Cases Involving Unfair Competition> defines the “non-public” as follows:

As for the relevant information that is not commonly known or easily accessible to relevant people in the field of the information, it shall be identified as the information “non-public” as set forth in the third section of the Article10 of the Anti-Unfair Competition Law.

“For any of the following events, the relevant information shall not be identified as non public:
1. The information is the general knowledge of the people in its technical or economic field or the practice of the industry;
2. The information only covers such contents as the dimensions, structures, materials, and the simple assembly of the components of the goods, and upon its entry into the market, relevant public may directly obtain it by observing the goods;
3. The information has been disclosed in public in publications or other media;
4. The information has been made known to the public in such forms as public seminars and exhibitions;
5. The information can be obtained from other channels;
6. The information is easy to obtain without certain cost.”

II. The Analysis of interpretation

The author Analysis the judicial interpretation as follows:

1, “Non-public” is relative

The so-called “public” refers to no-specific most people in society. But for Trade secrets, the relative public for “secret” is that main body having competition with right people. Therefore, even there has people besides the right person other knowing trade secret, it will not necessarily lead to information losing “secret”. For example, employees, distributors, partners of right people will know trade secret during business, as long as the right people signed a confidentiality agreement with these units, make them have to keep the information secret, it will not make the information loss “secret”.

2, others obtaining trade secrets illegally does not necessarily make the trade secret loss ” secret ”

The situations mentioned in judicial interpretation are based on being legal. If others get the information illegally, such as getting by bribery employee of right people, will not make information lose “secret”. But if information published maliciously, so the third party can through legal channels to obtain, it will make the trade secrets lose “secret”. Therefore, after found the information is stolen, right people shall immediately take measures (prosecution, call the police) to avoid malicious public trade secret.

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