CHINA Law and Practice Contributed by: Chuanhong Long, Ji Liu and Xiao Jin, CCPIT Patent and Trademark Law Office
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 patentable due to lack of inventive step. • Patent rights and trade mark rights are sub - ject 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. Protec - tion 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 invention 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- holder of a patent right, a trade mark right or copyright can exclude others from imple - menting their right. However, the right-holder of a trade secret has no right to prohibit others from obtaining the information inde - pendently through lawful means (eg, through independent research or reverse engineering). • A trade secret aims to protect non-public information, while the objects of other intel - lectual property rights are public. For exam - ple, patent and trade marks are published during administrative reviews, while trade secrets remain unknown to the public during their whole life span. 1.12 Overlapping IP Rights Trade secrets are often different from other types of intellectual property in the subject matter to
be protected, so theoretically, intellectual prop - erty rights can be protected by combining trade secrets and other types of intellectual property at the same time. However, due to the differ - ent ways of obtaining trade secrets and patents, because the former requires the relevant tech - nology to be kept secret, while the latter requires the technology to be disclosed in exchange for monopoly protection, the same technical con - tent cannot be protected by both trade secrets and patents. In addition, although software, for example, can be protected by both trade secrets and copyrights, two lawsuits would be concur - sus actionum, and hence only one of them can be chosen to pursue. 1.13 Other Legal Theories The types of infringement acts of trade secrets are stipulated in Article 9 of the Anti-Unfair Com - petition Law. According to this provision, they are: • obtaining a right-holder’s trade secrets by theft, bribery, intimidation, electronic intrusion or other improper means; • disclosing, using or allowing others to use a right-holder’s trade secrets obtained by the means mentioned in the preceding para - graph; • disclosing, using or allowing others to use a right-holder’s trade secrets in violation of confidentiality obligations or the right-holder’s requirements on keeping such trade secrets confidential; and • obtaining, disclosing, using or allowing any other party to use a right-holder’s trade secrets by instigating, tempting or helping any other party to violate the confidentiality obligations or the right-holder’s requirements on keeping such trade secrets confidential.
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