CHINA Law and Practice Contributed by: Chuanhong Long, Ji Liu and Xiao Jin, CCPIT Patent and Trademark Law Office
technical means, in order to obtain relevant technical information about the products. However, if the party concerned has learned of the trade secrets of others by improper means, and then claims that the acquisition is legal on the grounds of reverse engineering, it shall not be supported. 1.8 Computer Software, Artificial Intelligence and Technology In China, the protection of computer software and/ or technology is mainly through copyright protection, but software, especially related data, can also be pro - tected through trade secret protection. For example, models formed by sorting, processing and analysing data obtained through mass public channels may sometimes not be protected by copyright law because of their low “originality”, but such data and models can be protected through trade secret law. 1.9 Duration of Protection for Trade Secrets In theory, as long as the relevant information meets the three requirements for trade secrets, there is no time limit for its protection. According to relevant judicial interpretations, information publicly disclosed in pub - lications or other media, or disclosed through public reports, exhibitions, etc, can no longer be regarded as trade secrets due to the loss of confidentiality. Accidental disclosure does not result in loss of con - fidentiality. Furthermore, controlled disclosure, such as disclosure with a signed non-disclosure agreement (NDA), does not result in a loss of confidentiality. After accidental disclosure, steps should be taken as soon as possible to prevent further disclosure, such as signing an NDAs with a persons with knowledge. 1.10 Licensing Right-holders of trade secrets have the right to license their trade secrets to others in a non-exclusive, sole or exclusive manner and charge licensing fees. There is usually a confidentiality clause in the licence con - tract. Even if there is no obligation of confidentiality in the licence contract, the licensee is obliged to keep the confidentiality according to the principle of good faith. Therefore, generally speaking, licensing does not affect the protection of trade secrets. In order to ensure that the licensee of trade secrets takes reason - able confidentiality measures, it is recommended that
the licensor of trade secrets agrees on confidentiality obligations with the licensee when licensing, and veri - fies that the licensee has taken confidentiality meas - ures. 1.11 What Differentiates Trade Secrets From Other IP Rights Trade secrets are often associated with the protection of new technologies that are often also protected by patents. But the nature of trade secrets and patents is very different. • Trade secrets include all types of information, not just technical information. For example, a compa - ny’s contact list may be the subject of trade secret protection, but it is not protected by patents. • For a technology to be patented, it must meet the requirements of novelty, inventiveness and utility. Trade secrets, on the other hand, are not required to be novel or inventive. In general, any non-public information that a party has taken reasonable steps to keep confidential is a trade secret assumed to have utility. For example, any know-how can be protected as a trade secret, even if it is not patent - able due to lack of inventive step. • Patent rights and trade mark rights are subject to administrative review and approval (eg, a Chinese patent must be filed and granted by the State Intellectual Property Office of China), while trade secrets are not. Protection can be established as long as the three requirements of trade secrets are fulfilled. • Protection for trade secrets is indefinite, whereas a patent or trade mark right has a certain term. For example, in China, the term of protection for inven - tion patents is 20 years, the term of protection for utility model patents is ten years, and the term of protection for design patents is 15 years, counting from the date of patent application. The protection of trade secrets has no time limit, as long as the trade secret remains unknown to the public. • Protection for trade secrets is relative. A right-hold - er of a patent right, a trade mark right or copyright can exclude others from implementing their right. However, the right-holder of a trade secret has no right to prohibit others from obtaining the infor - mation independently through lawful means (eg,
37 CHAMBERS.COM
Powered by FlippingBook