Is the disclosure of the product equivalent to the disclosure of business secrets in the design drawings?This article discusses this issue in conjunction with relevant cases in judicial practice.
Author | Zhang Zewu Huang Yuanhui Beijing Weiheng (Guangzhou) Law Firm
Edit | Bruce
At the moment when the professional division of labor is highly refined, the entrusted processing enterprises holding business secrets to commission the mass production of products have become a common business model.In order to achieve the purpose of the entrustment, the client needs to deliver the content of the design drawings to the trustee so that they can complete the trustee.In this process, the trustees have been exposed to the business secrets of the commissioner, and the client often requires that the trustee can fulfill the confidentiality obligations of business secrets.Due to the needs of promoting their own business, the trustees may use the commissioner’s production samples as publicity examples, such as carrying samples to participate in the exhibition.At this time, the commissioner is very likely to be publicly disclosed by the product’s openness of the product’s design drawing business secrets.So,Is the disclosure of the product equivalent to the disclosure of business secrets in the design drawings?This article discusses this issue in conjunction with relevant cases in judicial practice.
Business secrets are essentially information, and the carrier of business secrets refers to the physical or electronic form of the business secret information of the business secrets. Therefore, the carrier of the business secret information is not equal to the business secret information itself.
In practice, everyone is not controversial about the carrier of the product that carries business secrets, but there is a misunderstanding of the design drawings that equate the drawings with the business secrets.Cases that are not supported by the court.In fact, when the plaintiff claims the protection of business secrets with design drawings, it is necessary to refine the secret points from the design drawings, limiting the scope of the secret information of its claim protection.The reason is that in the design drawings, not only the secret information of the plaintiff, but also often include common information such as the universal processes and solutions in the industry. In the case where the plaintiff cannot prove that the overall combination of public information is not known for the public, such public information informationUnable to be included in the scope of commercial secret protection.
For example, in(2020) Jin 01 Pinning 4575 Case No. 4575Among them, the appellant claims that its secret content is related technical information such as various layers of layers, naming and concealed editing methods reflected in the PSD source files in the “Lost Deer”.The court believes,
“The plaintiff failed to provide evidence to prove or clearly states that the above layer ranking is innovative or unique, and can be used as a technical solution obtained by technical tricks, process flows, design drawings or other technical solutions to scientific and technological knowledge, information and experience. In view of the plaintiff’s failure to failIt can be clearly stated that the specific secret points of the technical information it claim are clearly listed.
Another example, in(2016) Case 738 Huxing No. 738Among them, the defendant determined that the scope of the plaintiff’s business secrets to invade the two triars refers to the four software source code of ECSTORE, distribution king, Shopex485, and OME order processing.The court believes,
“Two third parties have not pointed out which technical information in their software is the secret point of their protection, and the defendant did not distinguish between, review, and determine the scope of technical information secrets in accordance with the law.All the objects of the object of the object of business secrets did not determine the scope of the technical information, and it was impossible to review and judge whether the technical information reaches the extent that the relevant personnel who did not reach the area of the affiliated field and easily obtained ‘.The document belongs to the confidentiality information and has not been made public.
It is the reason why products and design drawings are information carriers rather than the business secrets itself.Whether the product’s disclosure involves the disclosure of the commercial secret information carried by the design drawings, it is necessary to further analyze whether the information presented by the product presents the same information presentation and whether the same information belongs to the business secret information.Essence
Although the product is produced by the trustees according to the design drawings of the commissioner, the size requirements, structural design, material composition, and component combination of design drawings can be presented in the product. The two have a corresponding relationship.However, because the drawings are reflected in commercial secret information with symbols such as text, numbers, graphics, and combinations, and the product is based on its shape, structure, materials and combinations to carry business secrets.The same, such as product parameter information, internal structure details, etc., can be presented intuitive in the form of text, numbers and graphics in the drawings. However, in the product, it is necessary to be obtained by surveying, mapping, disassembly, and even experiments and may not be fully learned.Another example is the production process of the product, which can be clear at a glance in the design drawings, but it may not be able to restore the method in the product.
Due to the incomplete information carried by the product and the design drawings, the product disclosure information will inevitably be different:
first,For products used only for exhibitions, the product is still under the control of the exhibitors. Unless the exhibitors specially disclose the parameter information of the product, the relevant public can only learn about the external morphological information of the product in an observation manner.For example, the size, structure, material, and external components of the product cannot be known to the internal structure information under the shell.Of course, there are many exhibitors in the industry to disassemble and display the internal structure of the product in order to increase product selling points. At this time, the relevant public can further understand the internal structure information of the product, but the method is still limited to “observation”.The content of the information learned is still limited to part of the exposure state.
Secondly,For products that have been trapped and listed, but need to be used in specific scenarios without being easy to disassemble, or the product itself uses anti -disassembly technology processing products, although the product has been separated from the control of the producer, the technical information that the relevant public can know is still the product information that can still be known to the product.Limited, it is difficult to know the internal structure and parameter information of the product.If the former needs to be installed in the internal parts of a specific product, a large machinery and equipment installed in the construction site or the production workshop, etc.; if the latter is used in an integrated structure design, it will cause damage to the internal structure of the product once disassembly or disassembly.At the time, the relevant public still cannot know the internal structure and parameter information of the product.
For example, in(2020) Supreme Law Zhimin End 902 Case 902Monthly, the Supreme People’s Court pointed out:
“The technical information advocated by VMI is not only involved in the simplicity of the product size, structure, materials, and components.The claimed technology involved is the “auxiliary orientation roller mechanism of the beam layer of the belt”. The tire molding machine is installed on a small part above the conveyor roller. Therefore, only from the outside of the molding machine, it cannot directly observe the specific technical solution of the technology involved in the case.The technical solutions that they carry are not obtained by observation by the relevant personnel in the field. “
at last,For products that have been circulating and listed in the state of relevant public control, according to the different product characteristics, the information that the relevant public can know is still different, which can be divided into the following two categories:
the first sortFor products with relatively simple structures, or products designed by industry usage technology and standard parameters, such products can present detailed technical information that approach the design drawings by observing, mapping, and disassembly.For example, in(2021) Case 1440, the Supreme Law Zhimin,Among the plaintiff Zero Polar Company advocated the protection of technical drawings, but before the acting behavior, its technical drawings have been used to make products and listed on sale.The focus of dispute between the two sides.The first instance and the courts of the case all believed that the disclosure of the products of the zero -pole company had caused the technical information of the drawings, and pointed out:
“Unsteading public can disassemble the product of Zero Permians in the same way as the court’s on -site inspection. For the connection between components that cannot be directly observed, the connection between components can be used.Among them, digital bridges are used to measure capacitance, inductance, and resistance value; digital graphics ruler is used to measure line diameter, component size (encapsulation form), universal meters to measure connection relationships and diode characteristics.”” “
exist(2017) Su 02 Sentences No. 38In the middle, when the drawing of the technical information involved was stolen by the defendant in the case, the equipment such as the refrigerant produced by the drawing of Dashan has been sold publicly for many years.Publicly make the secret points 1 and 2 reasonable doubts about the public.The court of second instance believes that
“The technical characteristics of the structure involved in the secret point 1 and 2 generally lack the confidentiality. Generally speaking, it is necessary to determine that the mechanical device constitutes a technical secret, and it cannot be a simple mechanical activity. Because the corresponding phenomenon can be sold publicly publiclyObserve directly on the machine, the specific size can also be obtained through simple surveying, mapping and disassembly methods.Such technical information; it can also include specific technical information such as process procedures, test parameters, and technical point processing, including specific process. “
AnotherFor products made of complicated structures, non -standard technology, the technical information contained in such products can be clear at a glance in technical drawings, but in terms of products, it is necessary to use destructive disassembly, professional tool surveying, or multiple experiments to be possible to be able to be subject toTo obtain, that is, the large cost and cost of the relevant public need to be obtained. It does not meet the “general knowledge” and “easy acquisition” conditions of “the relevant personnel who have generally learned or easily obtained” in the judicial interpretation.The technical information contained in the drawings will not be made public.exist(2019) Case 129 ShanghaiAmong the plaintiff’s business secrets that the protection of the protection is the name of the technical size and meshing parameter in the drawing of the arc tooth cylindrical worm, the drawing of the drawing of the arc tooth cylindrical worm, and the related computing book.It was made public for several years.In this regard, the auxiliary of the plaintiff’s expert believes that the technical information involved is not calculated in accordance with the requirements of the national standard, but the non -standard design, and the determination of the specific value needs to be continuously tested, not casually selected;Measure the parameters of the axial teeth.The court believes,The public sales of the product do not necessarily cause the relevant technical information in the product to be known to the public. The evidence submitted by the above defendant and the opinions of the expert assistant are not enough to prove that the entire content of the technical information involved in the case has been generally known and and of the relevant personnel in the subordinate field.ObtainEssence
Based on the previous analysis, it can be seen that the design drawings and the information carried by the product do not have a complete correspondence. The difference in the form of product disclosure will also affect the depth and difficulty of the content of the relevant public’s information acquisition.We can analyze the two extreme situations first:
OneFor the extremely complicated or depth technical information recorded in the drawing, such as the precision parameters of the internal non -standard components, or the information that will not be presented on the product, such as the product manufacturing process process, this kind of information may still be difficult to pay due to a large cost.The product is obtained, or because it is not reflected in the product at all, it is usually not made public because the product is open;
SecondFor extremely simple, technical information that is recorded in the drawings and can be presented in the product in the product. Such technical information can generally be obtained by observing or disassembly.In this case, the public is essentially public information rather than business secrets.
Article 4 of the “Supreme People’s Court on Several Issues of the Application of Laws on Civil Cases of Fringeing Commercial Secret Civil Cases” stipulates that “does not know about the relevant public”, including:
“This information involves simple combinations of the product size, structure, materials, and components. Relevant personnel in the area can be obtained directly by observing listed products.”
The former “Explanation of the Supreme People’s Court on the Application Law of the Application of Civil Cases in Improved Competition of Civil Cases” also had similar regulations, that is, Article 9, paragraph 2 (2) provisions:
“It involves simple combinations of product size, structure, materials, and components. After entering the market, the information that the relevant public can obtain directly obtained by observing the product does not constitute business secrets.”
It can be seen that the technical information that can be obtained by observation is due to the lack of depth and does not meet the secret elements, which does not constitute a business secret.
For example, in(2016) Case 198 of AnhuiIn China, Dinglan Trading Corporation (Party A) and Anhui University of Traditional Chinese Medicine (Party B) signed a “Product Purchase and Sale Contract”, which stipulated that Party A ordered to order furniture (8 apartment beds). The contract contains an apartment bed design designThe drawing only records one parameter, namely the width of the bed, and has not fully displayed the structure of the apartment bed.In the later period, Dinglan Trading Company participated in the bidding of the student apartment procurement project of Anhui University of Traditional Chinese Medicine. Its bidding materials contained clear apartment bed design drawings and detailed specifications, which did not win.Dinglan Trading Corporation sued that Anhui University of Traditional Chinese Medicine used its participating apartment bed design drawings to constitute a violation of its business secrets.The court of first instance believes that
“As far as the information of the apartment bed product that can be displayed in the design drawing can be displayed (the width parameter of the bed body, the part that has been clearly displayed in the structure), after the real objects of the apartment bed products enter the market, it is easy to know the relevant public observation.”
The court in the second instance maintained the first trial judgment and believed that
“In this case, the drawings and parameters of Dinglan Trading Corporation and Yang Sea Shui claimed their rights only involved a simple combination of apartment bed size, structure, materials, and components, and it has been delivered to the University of Traditional Chinese Medicine in accordance with the” Product Purchase Contract “according to the case.8 apartment beds, relevant public can directly obtain information such as the size, structure and other information of the product through observing the product.
Between the two extreme situations, there are still existenceThird situationThat is, such information has a certain complexity and depth, such as internal structure, internal connection method, parameter information, etc. when the product is not protected by the product without special confidentiality measures.Receiving related technical information under a certain cost or cost, which will cause relevant technical information to be obtained by others through the method of disassembling, mapping, disassembling or experimenting by the product.Whether the product leads to the loss of business secrets in this situation requires further judging the general awareness and difficulty of obtaining technical information from the relevant public.Obtaining, generally does not constitute the disclosure of technical information.I have mentioned above(2020) Supreme Law Zhimin End 902 Case 902Among them, the Supreme People’s Court reiterated the standard when judging whether the technical information was disclosed, namely:
“The sales behavior of the right holder’s sales of its technical secret carrier does not necessarily cause the technical information carried on the carrier to be known to the public. When determining whether the relevant information requested by the right holder should be known to the public, it should still be whether the information is still whether the information is the information.Relevant personnel in the area generally know or easily obtain the criteria for judgment. “
But in any case, in the exhibition occasion controlled by the stills of business secrets or confidentiality obligations, the product information that the relevant public can obtain is limited to the external observation range. At this timeIt is listed as a information about the category of public information by judicial interpretation. “Business secrets” do not exist, and it does not matter that the business secrets are publicly public.For information such as product content structure, it is generally difficult to obtain by external observation methods, so products will not cause such technical information to be made public when exhibited.
The products and their design drawings are the carrier of business secrets, but the two ways carrying business secrets are different, and the technical information recorded in the design drawings in detail may be reflected in the products made from this, and the different forms of product disclosure will also affect it.Discovery of technical information.In the exhibition state, the information disclosed by the product is only external structural information. This type of information belongs to the information that “related public can directly obtain by observing the listing products”.The product is exhibited and made public.As a result, the product will not cause the business secrets of related technical drawings to be disclosed in the form of a finished product.As for the risks of the business secrets faced by the product when the product is listed and circulating, we recommend to avoid risks with integrated structural design, the scope of restrictions on contact with contact; if it is difficult to avoid public risks, it is recommended to patented in a patent way.Protect.
(This article only represents the author’s point of view, does not represent the position of the knowing power)
