CHINA Law and Practice Contributed by: Chuanhong Long, Ji Liu and Xiao Jin, CCPIT Patent and Trademark Law Office
1.7 Independent Discovery According to the relevant judicial interpretations, if the allegedly infringing information is obtained through independent research or reverse engi - neering, it should be determined that it does not constitute trade secret infringement as stipu - lated in Article 9 of the Anti-Unfair Competition Law. Here, “reverse engineering” refers to dis- assembling, surveying and analysing products obtained from public channels, through techni - cal 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 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 protected through trade secret pro - tection. 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. Accord - ing to relevant judicial interpretations, informa - tion publicly disclosed in publications or other media, or disclosed through public reports, exhi - bitions, etc, can no longer be regarded as trade secrets due to the loss of confidentiality. Acci - dental 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 confidential - ity clause in the licence contract. Even if there is no obligation of confidentiality in the licence contract, the licensee is obliged to keep the con - fidentiality 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 reasonable confidentiality measures, it is recommended that the licensor of trade secrets agrees on confidentiality obligations with the licensee when licensing, and verifies that the licensee has taken confidentiality measures. 1.11 What Differentiates Trade Secrets From Other IP Rights Trade secrets are often associated with the pro - tection 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 company’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
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