Issues Related to Judicial Expertise of Technical Secrets
Daniel Huang, Zhifan IP Attorneys
Abstract: With the continuous improvement of scientific and technological R&D levels and the intensified market competition within the same industry, more and more scholarly attention has been paid to legal disputes about trade secrets. Litigation cases involving technical secrets often entrust appraisal institutions to identify and analyse the special technical problems involved. This paper discusses how to determine the ‘secret point’ of the claimed technical secrets and how to judge whether the technical information is unknown to the public. It also explores how to judge whether the technical information of the sued infringement is essentially the same as the technical information contained in the ‘secret point’ in the process of judicial expertise involving technical secrets. Finally, it attempts to explore a feasible way for forensic expertise to involve technical secrets.
Keywords: trade secret; technical secrets; judicial expertise
1. Introduction
According to Article 9 of the Anti-Unfair Competition Law of the People's Republic of China (revised in 2019), “the trade secrets mentioned in this Law refer to the technical information, business information and other business information that are not known to the public, have commercial value and have been protected by certain measures taken by the right holder”. As an important intangible asset, trade secrets can not only provide the right holder with a competitive advantage, but also provide an important development direction for it, and can even be used as a strategic asset to establish a boundary for the right holder to distinguish other market competitors. With the continuous development of the market economy, business competition has become increasingly fierce, and illegal methods of infringing on others' business secrets have emerged one after another[1]. At present, in many cases where state secrets and trade secrets concurrent, the judicial organs mostly use civil cases of infringement of commercial secrets or criminal cases of infringement of commercial secrets to pursue liability separately[2]. And PRC’s latest "Criminal Law Amendment (11)" has made substantial amendments to the crime of infringing on trade secrets, which is in line with the background of my country's strengthening of intellectual property protection. The revised crime of infringing on trade secrets has been changed from consequential crimes to circumstantial crimes, lowering the threshold of conviction, raising the statutory penalty, increasing the methods of conduct, and expanding the scope of business secret identification. The content has shown a significant expansion trend[3].
The case of infringement of trade secrets has always been one of the difficulties in the field of intellectual property litigation – some judicial decisions have caused disputes among the legal professions. This situation is mainly caused by the following reasons. Firstly, as a special type of intellectual property, trade secrets are rights that are generated by ‘taking confidentiality measures’ within the scope of a specific person who knows the content of the trade secrets. It is usually held privately by the right holder and cannot be disclosed without administrative or judicial review. Only until the situation that the right holder discovers that their trade secret has been infringed and should seek judicial or administrative protection can it be disclosed to a specific agency. This makes it difficult for both parties involved in the case to produce evidence. Secondly, technical secrets are highly professional and usually involve various technical fields. Therefore, in addition to the traditional risk points divided into personnel risk, medium risk, and partner risk[4], there are also risk points due to referees. In the process of identifying technical secrets, personnel may have the risk of ambiguity in the technical scheme, which creates obstacles to refereeing. Thirdly, trade secrets are currently protected by administrative, civil and criminal administrative, three separate areas in China, and the administrative departments and courts that have jurisdiction over trade secret cases are quite different. For example, in the criminal law protection procedures, the basic courts have jurisdiction over cases, and they may also require the participation of public security organs. But in administrative cases, market management administrative organs at all levels may also participate. Finally, the trial rules for commercial secret litigation cases involving technical information are relatively independent, with few specific relevant legal provisions, and they also lack more detailed and operational content in relevant judicial interpretations.
For the reasons discussed above, in specific trade secret litigation cases involving technical information, administrative or judicial agencies often entrust an appraisal agency to analyse the specialized technical issues involved in a case. Sometimes, in order to improve the probability of winning the lawsuit, both parties involved in a case also use a third-party appraisal agency to provide support for their claims. The content of judicial appraisal in trade secret litigation cases involving technical information generally includes: determining the technical secret point of the confidentiality of the technical information involved (the secret point); whether the technical information contained is known or unknown to the public (unknown identification); and whether the technical information accused of infringement is the same or substantially the same as the technical information contained in the secret point (similarity identification). This paper attempts to discuss the content of the above two aspects of identification.
2. The necessity of judicial authentication of technical secrets
The current laws and regulations on the judicial authentication of technology secrets are incomplete. In practice, some judicial organs or scholars believe that technical secrets must undergo judicial authentication, and even believe that the results of such authentication can determine whether the technical secrets are established or not. As a result, the parties involved in trade secret cases or the trial organs often regard the conclusions of judicial authentication as decisive evidence for the determination of trade secrets. These phenomena all show that many misunderstandings urgently need to be clarified and reflected upon among appraisal agencies, parties to the case, and law scholars.
In practical legal disputes involving technical secrets, the initial main legal basis for judging whether the defendant infringed on the technical secrets of the right holder is Article 14 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Cases of Unfair Competition, implemented in 2007 (Judicial Interpretation in 2007), which states that, if the parties allege that others have infringed on trade secrets, they shall bear the burden of proof for the fact that the trade secrets they possess meet the legal requirements, that the information of the other party is the same or substantially the same as their trade secrets, and also that the other party has adopted improper means. Among them, the evidence that a trade secret meets statutory conditions includes the carrier, specific content, commercial value, and specific confidentiality measures adopted by the trade secret, etc.
According to this regulation, whether it is an ‘unknown identification’ or ‘similarity identification’, the right holder is first required to determine the specific content of the technical secret that they claim, that is to determine the secret point of the technical secret for delimiting the correct boundary of the technical secret. This is not only the basis for the right holders to initiate a series of rights appeals, but also the logical starting point and factual basis for the courts to hear cases, especially to determine whether the rights exist and whether they have been violated.
3. Problems with judicial authentication of technical secrets
In practical technical secret disputes, there are many cases in which the right holder (plaintiff) did not submit a commercial secret carrier, did not explicitly request protection from the court, or the scope of the claimed secret point was too large – all of which could lead to the loss of the right holder. For example, in Civil judgment (2018) Wan Min Zhong No.578, Anhui Higher People's court, the court held that the right holders’ “scope of technical secrets requested for protection is only a very broad scope of secrets, which may include some publicly known information. As the party requesting the right, they should clarify in this case the technical secrets that it seeks to protect beyond the scope of the criminal ruling and distinguish it from the well-known technical parts in the field”. Thus, the court denied the claim of the right holder (plaintiff) in the second instance to “reiterate the scope of the technical secrets he requested for protection”.
It was mentioned in a civil ruling of the Supreme People’s Court that the retrial applicant (defendant) stated that, Shenhua Company (plaintiff) claimed that the micro-suspension method paste resin polymerization production technology is a technical secret in the entire process flow, technical formula, actual operation, etc. But, they did not clarify the specific information and content of the technical secrets, which prevented Sanyou Company from conducting targeted defence, proof and cross-examination.
Therefore, the court ruled that, generally speaking, in trade secret infringement disputes, the right holder seeking protection should specify the specific content of the technical secret and define the difference between it and publicly known technical information. However, due to the different types of, fields and ways of infringement of technical information or business information requested to be protected as trade secrets, we cannot interpret the specific content of a trade secret only as a concentrated expression of a paragraph, and cannot impose too strict requirements on the description of the specific content of a trade secret. The trade secrets requested by Shenhua Company are widely distributed in various links such as specific process flow, core equipment technical specifications and technical parameters, raw material components, etc.
In this case, the court determined that, under normal circumstances, the right holder should specify the specific content of the technical secrets, and at the same time emphasize the particularity of the case. Therefore, without the final determination of the specific content of the technical secret, the court finally made a ruling in favour of the right holder. However, we believe that the handling of the specific content of the relevant technical secrets in the case is open to question.
4. Theoretical analysis of judicial authentication of technical secrets
4.1 Unknown judicial identification
The provisions of Article 3, Paragraph 1 of the Supreme People’s Court’s Provisions of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Civil Cases of Infringement of Commercial Secrets (2020 Judicial Interpretation) stipulates that “If the information requested by the right holder was not generally known and easily obtained by relevant personnel in the field when the alleged infringement occurred, the people’s court shall determine it as publicly unknown according to the Article 9 Paragraph 4 of the Anti-Unfair Competition Law”. This provision is a positive or affirmative element confirming that the disputed technical information is ‘publicly unknown’. According to this regulation, the rights holders of technical secrets can state the facts or provide evidence from the two aspects that the disputed technical information is not generally known to the relevant personnel in the field and thus easily obtained by the public, to show that the relevant technical information is ‘publicly unknown’.
For technical information that is not generally known to relevant persons in the field, it can be understood that technical secrets are not known to other persons in the field other than those who have the obligation to keep confidentiality as agreed with the right holder. ‘publicly unknown’ mainly refers to whether the relevant technical information has been disclosed at home and abroad before the date when the right holder claims the right to enjoy trade secrets. The technical information is not disclosed at home and abroad to show that the innovation contained in the technical information is sufficient to separate it from the public information to avoid undue protection of known technologies as technical secrets. It can also be understood in terms of whether the technical information as a whole has been disclosed by domestic and foreign public publications before the issuance of a search report by a department with patent search qualifications for ascertaining the right to trade secrets.
That the technical secrets are not easy to obtain by the relevant people in the specific field can be proved in terms of the following three aspects. Firstly, for rights holders who claim technical secrets, based on existing technology, time, manpower and material resources having been spent on the research and development of technical secrets; for example, the right holder can use the research and development process to show that, because of the relevant technical secrets, the right holder may be or is already in a relatively advantageous position in market competition. Secondly, because the right holder has adopted reasonable confidentiality measures, it is difficult for those outside the obligation of confidentiality to obtain the information. Thirdly, the technical staff in the relevant field needs to work hard or expend effort to obtain the technical secrets, based on the existing technology that has been discovered to be closest to the technical secret. Also, it may be the case that the content of technical secrets is only binding on specific persons who are obliged to maintain confidentiality, and the defendant obtained the technical secrets through improper means. The level defined as ‘easy to be obtained’ here should be lower than the degree of inventiveness in the sense of a patent. And the difference between the technical secrets with existing technology that has been discovered to be closest to the technical secret should be limited to the content of “direct replacement of conventional means in the technical field” claimed in the patent novelty examination procedure.
On the other hand, Article 3 of the “2020 Judicial Interpretation” also stipulates five situations in which the relevant information can be determined to be ‘publicly unknown’. These five situations are negative elements in the judicial authentication of technical secrets. The defendant can deny that the technical information of the right holder is ‘publicly unknown’ by providing evidence to show the existence of any of these five situations. In the situation that the information has been publicly disclosed in publications or other media, a search report can also be issued by entrusting a department with patent search qualifications to prove that the technical information mentioned is not ‘publicly unknown’. The validity of the search reports issued by the right holder and the defendant has no priority or rank. The key point is that who searches the existing technology closer to the content of the technical information defined by the secret point.
In a successful case, i.e. Civil judgment (2017) Yue 73 Min Chu No. 313, Guangdong Intellectual Property Court, of denying that technical information was ‘publicly unknown’ as claimed by the right holder by providing evidence to prove the existence of one of the above five situations, Guangzhou Intellectual Property Court stated that, although the plaintiff claimed that its technical secret points 1-4 were not known to the public at least before 30th September 2014, based on the results of its self-entrusted appraisal, the defendant provided evidence that the technical information involved in the case had been publicly disclosed on the Internet before the act of the defendant occurred or even before the completion of the research and development of the project involved in the case by the plaintiff. Therefore, the case was determined not to involve technical information that was ‘publicly unknown’, and thus it did not meet the requirements of confidentiality in this case.
Under the current background of respecting intellectual property rights and strengthening the protection of technical secrets, reducing the difficulty of protecting the rights of trade secret owners and reducing the burden of proof for the owners of trade secrets it has become the trend in trials involving trade secret disputes. In the first phase of the Sino-US Economic and Trade Agreement, it was stipulated that the responsibility for proving that trade secrets are not ‘publicly unknown’ shall be transferred to the defendant, in the case where the right holder provides preliminary evidence to prove that it has taken confidential measures for the claimed trade secret, the burden of proof or the burden of providing evidence is transferred to the defendant to prove that the business secret confirmed by the right holder is generally known or easily obtained by people within the scope of the information involved in the usual processing, and therefore is not a business secret (using appropriate terminologies under respectively different legal systems).
According to this agreement, the risk of the defendant losing the lawsuit is increased in litigation cases involving technical secrets. In response to this agreement, Article 32 of the Anti-Unfair Competition Law also contains a similar provision stating that the responsibility for proving that trade secrets are not ‘publicly unknown’ is transferred to the defendant. It is believed that the ‘preliminary evidence’ mentioned in the agreement can include the first two items in the above proof that technical information is not easily obtained by relevant personnel in the field, such as the records of the technology research and development process, evidence of market success, analysis reports that may achieve market success or gain a competitive advantage, reasonable confidentiality measures adopted, and the fact that the defendant has access to technical information.
4.2 Similarity judicial identification
The legal provisions related to the judgment of technical secrets infringement mainly relate to Article 23 of the Anti-Unfair Competition Law, Article 14 of the 2007 Judicial Interpretation, and Article 13 of the 2020 Judicial Interpretation. For the similarity comparison between the technical secrets and the alleged infringement of technical information, Article 14 of the 2007 Judicial Interpretation states that one of the conditions for the parties to claim that others infringe on trade secrets is that the information of the other party is the same or substantially the same as the trade secrets. This point is clearly stipulated in Article 32 of the Anti-Unfair Competition Law, and Article 13 of the 2020 Judicial Interpretation further elaborates on the essence of the same. In the following, we will only discuss the situation in which the technical information alleged has been summarized as substantially the same as the technical secret point in the practical cases.
Although the specific words used in distinct cases are different, there are many correspondences between substantially same judgments in patent infringement litigation and equivalent infringement judgments and the prior art defence in the patent infringement litigation. The principle of “Substantially the Same Infringement of Technical Secrets” as stipulated in Article 13 Paragraph 2 Items 1-3 of the 2020 Year Judicial Interpretation corresponds to the “Three Basics and One Common” principle in patent infringement regulations.
According to Article 13 of the 2020 Year Judicial Interpretation, if there is an overall difference between the technical secret and the technical information alleging infringement, but the difference is not substantive, the two are substantially the same. When judging whether the technical secrets involved in the case and the alleged infringing technical information are substantially the same, the first thing to consider is the degree of similarity and difference between the two. To do so, the relevant technical features of the alleged infringing technical information should be compared with the technical features of the technical secrets. This can also be used to determine whether the defendant can easily understand the overall technical plan from when the alleged infringement occurred, as well as the difference between the technical features of the alleged infringing technical information and the features of the technical secrets, including use, purpose, and effects. Easily understand in this case should correspond with the ‘easy access’ in the judgment of the ‘publicly unknown’. As mentioned above, the difficulty of ‘easy access’ should be lower than the degree of inventiveness in the sense of a patent. The technical features of the claimed technical secrets that are different from the closest prior art should be limited to the content of ‘direct replacement of conventional means in the technical field’ in the patent examination procedure. Correspondingly, if the different technical characteristics between the alleged infringing technical information and the involved technical secret belong to the ‘direct replacement of the conventional means in the technical field’, then the different technical characteristics can be considered to be ‘easily understood’.
When comparing the alleged infringing technical information with the technical secrets involved, all the technical features recorded in the technical secrets claimed by the right holder should be compared with the alleged infringing technical information. If the alleged infringing technical information contains all the technical features that are the same or substantially the same as all the technical features recorded in the secret point of the involved technical secret, it should be determined that the involved technical secret is identical to the alleged infringing technical information. When one or more technical features recorded in the lack of technical secrets are not substantially the same, it shall be determined that the technical secret involved in the case is not identical to the alleged infringing technical information.
Information related to technical secrets in the public domain can correspond to the defence of prior art in patent infringement litigation. However, this should not include cases where technical secrets are the same as relevant information in the public domain, because the non-publicity judgment and identity judgment of technical secrets are carried out in the same litigation procedure. If the ‘technical secret’ is the same as the relevant technical information in the public domain, then it is not confidential, the technical information claimed by the right holder is not a technical secret, and there is no need to make a similarity judicial identification. Therefore, when there is indeed a difference between the technical secret and the alleged infringing technical information, and if the technical secret of the right holder is more similar to the technical information than the relevant technical information and the alleged infringing technical information in the public domain, then it should be determined that the technical secret and the alleged infringing technical information are substantially different, and vice versa, they are substantially the same.
5. Implementation path of technical secret confirmation
Determining the specific content of the claimed technical secrets can be differentiated according to the methods used by the defendant to sue the right holder for infringement. According to Article 9 of the Anti-Unfair Competition Law implemented in 2018, the defendant’s infringement of technical secrets can be divided into two behaviour categories: obtaining and disclosing technical information; and using technical information. Generally, the process of acquiring and disclosing technical secrets may change the carrier of technical secrets, such as copying drawings and electronic files by taking photos or videos. But this process will not lead to substantial changes in the form of technical secrets and solutions. The ultimate purpose of the defendant's infringement of technical secrets is to use them to obtain commercial benefits. During use, the carrier and manifestation of technical secrets will be changed, and the technical solutions embodied in the technical secrets may also change. According to whether the form of expression of the technical secret has changed, the requirements for the expression of the specific content of the technical secret are also different.
Carriers of technical secrets include paper documents that record technical information such as product design drawings, technological processes, formulas, experimental reports, instructions, and research and development records, as well as digital storage media, such as USB disks, CDs, personal computers, and network systems. Since the process of obtaining and disclosing technical secrets will not lead to changes in the form of expression of technical secrets, the judgment can use the words, symbols or data information directly recorded by the carrier, or even all the technical content recorded by the carrier, as the secret point. For example, in a civil ruling of Supreme People’s Court, i.e. (2014) Min Shen Zi No.378, the Supreme Court held that the technical secrets claimed by Tengxuan Company are the five sets of drawings in this case, namely ci601, ci602, cim602, cem015-u120, and cem015, including dimensional tolerances, geometric tolerances, welding symbols, surface roughness, material heat treatment technical requirements and other processes. Technical information and technology portfolio including parameters […] [and the court] recognized that the five sets of drawings of Baoxuan Company and Tengxuan Company’s five sets of drawings in this case were substantially the same as the technical information and their combinations recorded in the second-instance judgment […] Baoxuan Company, Ma Lianzhong, and Sun Zhiwei recognized that all the rotary joint products put into production were designed in accordance with the five sets of drawings accused of infringement in this case, Ma Lianzhong stated during the investigation by the Wujin Administration for Industry and Commerce that Baoxuan Company had produced 8 sets using the bcid601-b001 drawings, using bcim502 drawings to produce 78 units.
Therefore, the court determined the amount of compensation based on the number of products produced by the defendant.
However, there can be many disadvantages in using the technical information obtained, such as dimensional and geometric tolerances, surface roughness, material heat treatment, technical requirements and other process parameters, recorded by the carrier as technical secrets, especially when the defendant is suspected of using technical secrets. This is because: (1) there is a lot of technical information recorded in the carrier (such as drawings), which includes a variety of technical combinations or technical solutions, and different people have different understandings of these technical solutions; (2) some of the information recorded on the drawings may contain publicly known information – if the defendant provides evidence to prove that certain technical information belongs to existing technology, it is difficult to determine the non-publicity of the technical solution involved; (3) when judging the similarity, if the defendant’s technical information has both the same and different parts compared to the technical information recorded in the right holder’s drawings, it is difficult to determine whether the two are identical; (4) the carrier obtained by the defendant by improper means may be a duplication or copy of the carrier of the right holder, and it is easy to judge that the technical information recorded in the two is the same – but this can only explain the defendant’s improper means of obtaining and disclosing technical secrets; if the infringement occurs where the defendant denies that the product is manufactured completely based on the technical information of the drawing, it is difficult to determine whether the technical manufacturing data of the defendant’s product and the corresponding parts recorded in the drawing are the same or substantially the same; (5) if all the technical information of the carrier is listed as technical secrets, the number of technical secrets will be unreasonably increased, and the full review will inevitably result in a substantial increase in the workload of identification, thereby affecting the efficiency of the trial.
Therefore, when determining whether the defendant has used the technical information claimed by the right holder, the latter should summarize the technical solution that can solve the corresponding technical problem based on the technical information recorded in the carrier. According to Article 1 of the interpretation of the Supreme People's Court on Several Issues concerning the application of law in the trial of disputes over technology contracts enacted on January 1, 2005, the Supreme People’s Court of China pointed out that “technical achievements refer to technical solutions involving products, processes, materials and improvements made using scientific and technological knowledge, information and experience, including patents, patent applications, technical secrets, computer software, and integrated circuits, layout design, new plant varieties, etc.” This regulation links technical solutions with patents and technical secrets: technical solutions as a technological achievement can be used to describe technical secrets. In Opinions of the Supreme People's Court on giving full play to the judicial function of intellectual property rights, promoting the great development and prosperity of socialist culture and promoting the independent and coordinated development of economy published on December 16, 2011, the Supreme People’s Court also pointed out that “on the basis of business secret information that meets legal requirements, the scope of protection of business secrets is accurately defined, and each individual business secret information unit constitutes independent protection”. We can understand ‘each individual trade secret information unit’ as the above technical solution. In the Patent Examination Guidelines, a technical solution is defined as “a collection of technical means that use natural laws to solve the technical problem, and the technical means are usually embodied by technical features”. Generally, technical information belonging to the category of technical secrets can be expressed in the form of technical features in one or more technical solutions that can solve technical problems and feature certain functions, such as technology-related structure, raw materials, components, formulas, materials, samples, styles, plant new species propagation materials, processes, methods or their steps, algorithms, data, computer programs and related documents and other information.
The secret point of technical secrets should be based on the content recorded by the carrier as evidence, but not limited to the content recorded by the carrier. Moreover, the technical information recorded by the carrier cannot all be included in the scope of technical secrets. The scope of protection of the secret point should cover the technical information recorded in the carrier, its equivalent modifications and technical deformations, and the same technical modifications based on the technical information recorded in the carrier obtained to avoid infringement made by the defendant through improper means. Based on the technical information recorded in the carrier, combined with the technical ideas formed during the technological research and development process, the upper-level technical solutions can be summarized.
We recommend that the secret points of the technical secrets be summarized in the form of drafting the claims in the patent application. In the relevant laws and regulations related to patents, whether how to write the claims is clear and complete; how to determine the scope of protection of the claims; how to determine that the claims are novel and inventive relative to the prior art; how to determine whether the accused technical solution is infringing based on the authorized claims. All the above points have detailed and clear regulations. In many years of practice at home and abroad, a complete, detailed and enforceable set of rules about the above points has been generally accepted by the industry. Constructing one or more secret points with a clear level of protection in the form of the technical solution defined by the claims in the patent application is conducive to fixing the scope of the technical secret claimed by the right holder. It also enables right holders and defendants suspected of infringing on technical secrets to have a common understanding of the scope of technical secrets, and at the same time facilitates the conduct of judgments. In terms of ‘publicly unknown’ confirmation, the right holder and the defendant search and collect evidence in relation to the technical information that they understand together and explain whether the disputed technical information is unknown to the public from both positive and negative aspects. In the similarity confirmation stage, the defendant’s technical information is compared with the technical information contained in the secret points that have been confirmed as technical secrets to confirm whether the two are the same or substantially the same.
In the process of determining the secret point, the scope of the secret point can neither be expanded without limitation, so that the technical information limited by the secret point cannot be distinguished from the existing technology, nor can it deliberately narrow the scope of protection of technical secrets, so that the scope of protection of secret points in the subsequent ‘similarity’ judgment procedure cannot cover the defendant's accused technical solution. At the same time, as a technical solution, the content of the secret point should be sufficient, complete, detailed and clear to the extent that ordinary people in the field can understand it. Only in this way can the subject of the case be clarified, and the subsequent ‘publicly unknown’ appraisal and ‘similarity’ appraisal can proceed smoothly. Mere principles and technical effects, abstract technical concepts or uncertain technical information cannot become technical secrets. The structure, process parameters, composition, and content that cannot exist independently in the form of a product or method and cannot achieve a certain function alone are also not suitable to be determined as secret points.
For example, for the technical information involving tangible products, samples and styles such as drawings, photos, and videos, we can sum up the overall structure, mutual position, connection, control, and driving relationship that constitutes the technical secret part hierarchically, as the upper-level technical solution, and then describe in turn the shape, structure, and local size of a certain component. For the technical information related to the raw materials, components, formulas, materials, and propagation materials of new plant varieties such as text materials, instructions, videos, and test records, we can summarize the components that constitute the technical secrets hierarchically as the upper-level technical plan, and then describe the content of each component and the technical plan of the production process in turn. For flowcharts, training materials, operating video materials, text materials recording related processes, methods or steps, we can sum up the operational steps that constitute the technical secrets as the upper-level technical solution in a hierarchical manner, and then describe a further limited operation step and process indicators as the middle and lower-level technical solutions. For technical information involving algorithms, data, and computer programs, we can summarize the functional modules that constitute the technical secrets as the upper-level technical solution in a hierarchical manner, and further describe the sub-modules, programming languages, programs, and program codes of a certain functional module that are further defined as the middle and lower technical solutions, up to the source code level of the technical execution information module.
6. Conclusion
From 2013 to 2017, according to Investigation report on the judicial trial of trade secrets after the amendment of anti unfair competition law written by the research group of intellectual property division of Beijing Higher People's court, 338 unfair competition cases involving trade secrets were resolved by courts nationwide in China, and about 22% of the cases involved technical secrets. At present, there is no universally accepted standard for forensic expertise involving technical secrets in the industry. We believe that the judicial appraisal of technical secrets is a kind of judgment behaviour, not search or retrieval behaviour, and the current appraisal of technical secrets lacks standardization. Therefore, in order to determine whether the technical information involved in a case is the same or substantially the same as the technical information contained in the ‘secret point’, we should first specify the secret point of the technical secret and summarize it by imitating the writing form of the claims in the patent application. At the same time, as a technical solution, the content of the secret point should be sufficient, complete, detailed and clear, to the extent that the ordinary personnel of the profession or industry can understand it, to clarify the object of the case, and so that the subsequent ‘publicly unknown’ judicial identification and similarity judicial identification can be carried out smoothly.
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