(1) Advantages of trade secret protection compared with patent protection
(1) There is no limit on the duration of trade secret protection.
According to the Anti-Unfair Competition Law, Opinions of Henan Higher People's Court on Relevant Issues in the Trial of Trade Secret Cases and other relevant laws and regulations, as long as the trade secret meets the statutory conditions and the obligor knows or should know the trade secret, he shall perform the obligation of confidentiality until the trade secret is made public. In short, the term of confidentiality obligation is the same as the duration of commercial secrets, that is, the obligor should perform the confidentiality obligation during the period when the commercial secrets are not made public. As long as the protection measures taken by the trade secret holder are enough to prevent the trade secret from being leaked, the economic benefits brought by the trade secret can be obtained indefinitely.
however, the term of patent protection is clearly stipulated by law. When the legal protection period expires, the patent right will be terminated, that is, the patented technology has become a resource of the society, and anyone can use it for free. The patentee no longer enjoys the exclusive right and cannot prohibit other units and individuals from using the patented technology without their consent.
(2) The procedure of obtaining protection is simple and takes less time.
a technical information or business information can be protected by law as long as the enterprise adopts confidentiality measures, such as concluding confidentiality agreement, establishing enterprise confidentiality system and educating employees on confidentiality, without complicated procedures such as application and technology disclosure.
Relatively speaking, the procedure of obtaining patent protection is much more complicated. Patent applicants need to fully prepare the application materials in accordance with the provisions of the relevant patent law, apply for registration with the patent administrative department of the State Council, and after preliminary examination and publication, they will be issued with the corresponding patent certificate and registered and announced at the same time. Articles 26, 27 and 34 to 4 of China's Patent Law (revised in 28) make specific provisions on matters related to patent application.
(3) There is no need to pay application fees, annual fees and other fees, and the cost is relatively low for trade secrets with relatively small value.
Unlike the patentee who obtains exclusive right to use by relying on the direct provisions of the law, the holder of trade secrets mainly protects all his trade secrets through his own protective measures, and the cost of confidentiality is mostly expenses such as taking confidentiality measures, establishing confidentiality rules and regulations, educating employees on confidentiality, and signing confidentiality agreements. However, the confidentiality expenditure of trade secrets is flexible, and the obligee can flexibly decide the confidentiality cost according to the value of trade secrets.
according to articles 43 and 44 of the patent law of the people's Republic of China (revised in 28), the patentee shall pay the annual fee from the year when the patent right is granted. If the annual fee is not paid as required, the patent right shall be terminated before the expiration of the time limit. Therefore, regardless of the value of the patent, patent protection requires the patentee to pay the application fee and annual fee according to law, otherwise it will bear adverse legal consequences. The cost of patent protection is too high for those technologies whose own value is not enough to cover the cost of protection.
(4) The scope of protection of trade secrets is wider than that of patents.
according to the anti-unfair competition law, the protection objects of trade secrets mainly include technical information and business information. On the basis of the Anti-Unfair Competition Law, the State Administration for Industry and Commerce's Several Provisions on Prohibiting Infringement of Trade Secrets (Amendment), the Beijing Higher People's Court's Answers to Several Questions in the Trial of Anti-Unfair Competition Cases (J.G.F.A. [1998] No.73) and the State Science and Technology Commission's Opinions on Strengthening the Management of Technical Secrets in the Flow of Scientific and Technological Personnel have analyzed the technical information and business information in detail. The technical information includes not only the complete technical scheme related to design, procedure, product formula, manufacturing process and manufacturing method, but also the staged technical achievements in the development process, valuable technical data obtained and technical know-how for technical problems. Business information mainly includes: business strategy, management know-how, customer list, supply information, production and marketing strategy, pre-tender estimate in bidding and tender content.
the object of patent protection is only technical information, not including business information. According to Article 2 of the Patent Law of the People's Republic of China (revised in 28), the object of patent protection includes but is not limited to technical information such as products, methods or new technical solutions proposed by their improvement.
(5) trade secrets are adopted for protection, and there is no need to disclose trade secrets.
the law requires that the constituent elements of trade secrets are in a secret state of "not known to the public", which can bring economic benefits and competitive advantages to the obligee. The obligee who adopts the method of trade secret protection does not need to disclose the contents of the trade secret to anyone. Just because there is no need to disclose trade secrets, it prevents others from creating more competitive trade secrets on the basis of referring to the original trade secrets, thus affecting the dominant competitive position of the original trade secrets.
while patent application requires disclosure of technology. According to Articles 34 and 4 of the Patent Law of the People's Republic of China (revised in 28), inventions, utility models and designs applying for patents must be made public before or after the application is approved according to law. In other words, obtaining patent protection is at the expense of disclosing the patented technical content. Once the technical content is made public, it is impossible to prohibit others from referring to the published technical information under the legal premise and developing technologies with the same or more valuable functions, which will pose a potential threat to the economic interests and competitive position of the patentee.
(6) The standard of constitutive requirements of trade secrets is relatively low.
judging from the relevant laws and regulations in China, there are three constitutive requirements of trade secrets, including not being known to the public; It can bring economic benefits to the obligee, is practical and has been protected by the obligee. Compared with patents, the requirements for novelty and creativity of trade secrets are relatively low. "Not known to the public" only requires that business secrets are not generally known to people in the field who walk with the obligee. As for the security measures taken, the standard set by our law is "reasonable", that is, as long as the obligee makes others know or should know the existence of the trade secret, it can be judged that the security measures taken by him are reasonable.
Articles 22 and 23 of the Patent Law of the People's Republic of China (revised in 28) set strict requirements on the technology to be patented. Inventions and utility models that require patent rights should be novel, creative and practical. Novelty means that the invention or utility model does not belong to the prior art; No unit or individual has filed an application for the same invention or utility model with the administrative department for patent in the State Council before the filing date, and it is recorded in the patent application documents published or announced after the filing date. Creativity means that compared with the prior art, the invention has outstanding substantive characteristics and remarkable progress, and the utility model has substantive characteristics and progress. Practicality means that the invention or utility model can be manufactured or used and can produce positive effects.
the design for which the patent right is granted shall not belong to the existing design, and shall be obviously different from the existing design or the combination of existing design features; No unit or individual has filed an application for the same design with the patent administration department of the State Council before the application date, and it is recorded in the patent documents announced after the application date. The law requires a high level of novelty, creativity and practicality in patent application, and many technical information failed to apply for a patent because it failed to meet the requirements, causing huge losses to the owners of technical information.
(7) there are no geographical restrictions on the protection of trade secrets.
Trade secrets are mainly protected by the right holder's confidentiality measures. This kind of protection has no geographical restrictions and is effective at home and abroad. For example, the formula of Coca-Cola is protected as a trade secret, which is a trade secret all over the world and can't be snooped by others. Patent protection is different. The premise of obtaining patent protection is to apply to the patent administration department according to law. The granted patent right is only valid within the space validity scope of the law on which the patent is based. If you want to enjoy the patent right for the same technology in other countries or regions, you must apply through legal procedures according to the laws of other countries or regions, and be approved to grant the patent right after passing the examination.
(II) Disadvantages of trade secret protection compared with patent protection
(1) There is no special legislation on trade secret protection in China.
At present, the laws and regulations on the protection of trade secrets in China are scattered in some laws and regulations, judicial interpretations and departmental rules, and the legislature has not yet formulated a law specifically regulating and protecting trade secrets. With the development of science and technology in society and economy, trade secrets have played an increasingly important role. For some enterprises, trade secrets are the capital for their survival and the driving force for their development, so they are paid more and more attention.
At the same time, the infringement of trade secrets is becoming more and more serious, so it is urgent and necessary to formulate a law to regulate and protect trade secrets. As for patent protection, China has relatively perfect special legislation, mainly including the Patent Law of the People's Republic of China and the Detailed Rules for the Implementation of the Patent Law of the People's Republic of China, and other administrative regulations, local regulations and judicial interpretations have also made more detailed supplementary provisions on patents.
(2) the protection of trade secrets is relative.
the right to trade secrets is a relative right, and its prohibition effect is limited to the act of infringing trade secrets, which is not as good as the act of others legally obtaining trade secrets. Therefore, the obligee has no right to prohibit others from obtaining the same trade secret through independent research and development, reverse engineering and other legal means. Patent protection, on the other hand, is not the case. Once the patent applicant is granted a patent right after passing the examination by the patent administrative department of the State Council according to law, he enjoys the exclusive right to the patent, and has the right to exclude any unit or individual from applying for a patent for the same or similar patent, regardless of whether it is obtained by legal means.
(3) The possibility of losing rights is high.
once a trade secret is made public, it will lead to the legal consequences of "the trade secret will be destroyed due to publicity" as stipulated in the Anti-Unfair Competition Law, and the right to trade secret will naturally disappear.
according to the relevant laws and regulations of our country, the disclosure of trade secrets mainly includes the disclosure of the obligee and the disclosure of the third party. Among them, the disclosure of the third party includes the disclosure due to the infringement of the third party and the disclosure after the third party obtains the trade secret through independent development, reverse engineering and other legal means. The public means of the obligee are more complicated and diverse.
For example, in the Opinions of Jiangsu Higher People's Court on Relevant Issues Concerning the Trial of Trade Secret Cases (No.3 [24] of Su Gao Law Review Committee), it is also mentioned that the obligee may make the trade secret public due to obviously improper confidentiality measures; The third party may obtain the trade secret through infringement or independent development, reverse engineering and other legal means, and then make the trade secret public. It is not difficult to find that business secrets are easily forced to be made public because of some intentional or unintentional behaviors. In short, the more ways in which trade secrets are made public, the greater the possibility of losing trade secret rights.
The patent right is the right granted to the patentee by the patent administration authority according to law. Unless there are some special circumstances, the patentee will generally not lose his patent right before the expiration of the patent protection period.
according to China's patent law, the special circumstances of losing the patent right mainly include the following four types: failure to pay the annual fee as required leads to the early termination of the patent right; Voluntary waiver statement leads to premature termination of the patent right; Declaring the patent right invalid for illegal reasons; And the expiration of the patent protection period. From the above discussion, the right holder of trade secrets is more likely to lose his rights than the patentee.
(4) In intellectual property disputes, it is difficult for the obligee to give evidence in cases of infringement of trade secrets.
since the right to trade secrets is obtained in the original way, it does not need to be approved by law, and the government department does not issue a "trade secret certificate". After a trade secret infringement case occurs, the trade secret holder should not only provide evidence to prove that the information used by the other party is the same as or substantially the same as its trade secret, but also the fact that the other party has taken improper means, and has the conditions to obtain the trade secret, and should also prove that the trade secret meets the conditions stipulated by law and is legally owned by it.
if it can't prove that the technical information or business information infringed by it meets the constitutive requirements of trade secrets, it will lose the case. Patent infringement cases are different. The patentee only needs to prove that the other party has committed improper acts to infringe his patent right, and does not need to provide evidence to prove that his patent meets the patent conditions stipulated by law.