Trade secrets condense the intellectual achievements created by enterprises in production and business activities, and are one of the core competitiveness of enterprises, and scientific researchers are the core of the core, whether trade secrets can be effectively protected is related to the survival and long-term development of enterprises, and is also related to the major interests of an industry and a country. Therefore, "the flow of scientific and technological personnel and the protection of technical secrets" is a dilemma of current scientific and technological innovation and law.
Of course, trade secret protection is a top priority. On the other hand, if the innovation achievements and innovation environment of scientific research personnel are not supported and encouraged, and the innovation enthusiasm of scientific research personnel is suppressed, and scientific research personnel take the initiative to leave their jobs to start their own businesses, upgrade and innovate on the basis of well-known general technologies to develop new products with market competitive advantages, so as to compete with the original unit in the same industry, and are punished for the crime of "infringing trade secrets", is it also an unfair competition?
It is necessary to be vigilant that an enterprise with a strong party uses the Anti-Unfair Competition Law to engage in unfair competition and misleads the relevant authorities to apply the Criminal Law to infringe on trade secrets to suppress private enterprises with competitive advantages, which completely deviates from the original intent of the Anti-Unfair Competition Law: "Encourage and protect fair competition and stop acts of unfair competition." The Anti-Unfair Competition Law regulates acts of unfair competition in a narrow sense, as well as administrative monopolies and acts restricting competition. In other words, the "Anti-Unfair Competition Law" cannot become a tool for restricting competition and unfair competition, and the "Criminal Law" cannot become a tool for interfering in economic disputes, and even make scientific research personnel with outstanding contributions imprisoned and deprived of their freedom, and scientific research projects suspended. This is not only chilling for scientific researchers, but also a major loss for the industry and the country.
In the current situation, is trade secret infringement strong or moderate protection?
Ma Shihong Profile.
Ma Shihong is a core technical expert and technical leader of CRRC.
From 1992 to 2017, Ma Shihong worked in a subsidiary of Hunan CRRC Zhuzhou Electric Locomotive Research Institute, referred to as "Zhuzhou Locomotive Research Institute", successively presided over a number of national railway key projects, and used "reverse engineering" to crack the grinding car control system of the American Hasker (HTT) company. It has played an important role in promoting the progress of railway technology in China, ensuring the safety of railway transportation and improving transportation efficiency.
Ma Shihong has won the second prize of scientific and technological progress of the Ministry of Railways in 1998, the first prize of scientific and technological progress of the Ministry of Railways in 1999, the first prize of scientific and technological progress of China Railway Construction Corporation in 2004, the first prize of scientific and technological achievements of the Ministry of Railways in 2005, the title of "Tenth Five-Year" advanced scientific and technological worker of China Southern Locomotive and Rolling Stock Group in 2006, and the "Mao Yisheng Science and Technology Award - Railway Science and Technology Award" in 2010. Electrification and informatization have made great contributions.
In September 2017, Ma Shihong resigned from Zhuzhou Machinery Institute and established Changsha Hanpeng Electronic Technology Co., Ltd. (hereinafter referred to as "Hanpeng Company"), which is a national high-tech enterprise, a Hunan software enterprise, and a technology-based small and medium-sized enterprise, and has obtained more than 50 patents and more than 10 software copyrights, and many projects have broad market prospects.
Previously, the most mature and reliable grinding car electrical system in China was the American Husker (Jupiter) network control system used in the grinding car purchased by China State Railway Group (hereinafter referred to as "China Railway Group"). Since then, China Railway Group has encouraged companies with the capacity to localize the JUPITER system and components. Ma Shihong led Hanpeng Company to develop a grinding car network control system with independent intellectual property rights based on the second-generation Jupiter system, which is the most widely used, the longest used and the most marketable, and is currently the most intelligent subway rail grinding car in China, and is the first application in many technologies at home and abroad.
In other words, Ma Shihong and Hanpeng Company are self-developed, upgraded and innovative proprietary technologies based on the Jupiter technology in the United States, and are not patented technologies of Zhuzhou Machinery Institute. Husk has patents in the U.S. and trademarks in China.
Replay of the case. Ma Shihong led the staff of Hanpeng to develop a new generation of grinding vehicle control system, including a network control module, showing new advantages. As a result, Hanpeng Company and Kunming China Railway Construction High-tech Equipment Co., Ltd. (hereinafter referred to as "Kunming China Railway") signed a joint development agreement, by Kunming China Railway production host, Hanpeng Company production grinding trolley and control system, this new type of grinding car has been valued and welcomed by the railway market, Chongqing Metro, Nanjing Metro, Guangzhou Metro follow-up lines want to use the subway grinding car; At the same time, it has signed cooperation agreements with many projects such as the 20 grinding head full-range turnout grinding car of the National Energy Group, the large-scale road maintenance machinery emergency lifting and resuming pumping station of the China Railway Guangzhou Bureau Group, and the large-scale road maintenance construction of the new environmentally friendly toilet of the China Railway Qinghai-Tibet Group.
Hanpeng's scientific research results were put into the market and transformed into productivity, thus threatening the monopoly position of Zhuzhou Machinery in this market.
Ma Shihong was criminally detained on September 22, 2022, and his arrest was approved on October 28, 2022, until December 15, 2023, the People's Court of Tianyuan District, Zhuzhou City, Hunan Province, issued a criminal attached civil judgment [(2023) Xiang 0211 Xingchu No. 286], convicting Ma Shihong of the crime of infringing trade secrets, sentenced to four years in prison, and fined 1 million yuan; Hanpeng Company committed the crime of infringing on trade secrets and was fined 5 million yuan. Hanpeng Company compensated Zhuzhou Machinery Institute 4.86 million yuan and punitive damages of 13.98 million yuan (a total of 18.84 million yuan).
Legal Analysis. According to the Anti-Unfair Competition Law amended in 2019, "trade secrets refer to commercial information such as technical information and business information that is not known to the public, has commercial value, and has been kept confidential by the right holder." It can be seen that the three legal elements of trade secrets are: (1) secrecy, (2) value, and (3) confidentiality measures, and these three elements must be present at the same time in order to be recognized as a trade secret by law.
Secrecy means that information that is a trade secret is not known to the public; "Value" refers to the fact that the information requested by the right holder has actual or potential commercial value because it is not known to the public; Confidentiality measures are managerial, which means that the right holder has taken confidentiality measures against its secrets and managed them as secrets.
Article 123 of the Civil Code clearly lists trade secrets as the subject matter of intellectual property rights. Trade secrets have their own particularities compared with general intellectual property rights. General intellectual property rights are exclusive, exclusive, and have the effect against third parties, and unspecified members of the public have the obligation not to enforce them; Trade secrets are not effective against bona fide third parties, who may act in good faith to exploit trade secrets obtained through legitimate means, such as self-research and development and "reverse engineering", and the unspecified public is not obligated not to enforce them, but cannot be implemented because they do not know about them.
1) In this case, Ma Shihong and Hanpeng Company used the operation manual of the American Husk Company (the "American Manual") and public literature ("Research on the Control Strategy of Rail Grinding", "A Control System for Rail Grinding Motor", "A Control Method for the Deflection Angle of Rail Grinding"), etc., combined with the usual methods, using common knowledge, through more than three years of research, testing and debugging, and successfully developed the grinding trolley and control system.
The judicial interpretation makes it clear that public knowledge technology refers to "the information has been publicly disclosed in public publications or other **", and does not refer to all technical aspects of a product. Therefore, the technology of Zhuzhou Machinery Institute is not "secret".
2) In this case, the so-called four secret points of the grinding control algorithm of the grinding car proposed by Zhuzhou Machine: 1Publicly known, 2It cannot be used and does not have "value" (cannot be used directly, and the communication, functions, and parameters are all different).
3) In this case, the secret point was submitted by Zhuzhou Machinery Law Firm, and it was not confirmed by Hanpeng Company, proved by a third-party appraisal agency or industry expert, and did not provide evidence of the storage and extraction of the secret point, so it could not be proved that the secret point was true and valid.
4) In this case, the so-called Secret Point 1 B19 Keyboard Control Technical Scheme, Secret Point 2 Serial Port Bootstrap Technical Scheme and Secret Point 3CAN Bootstrap Technical Scheme proposed by Zhuzhou Machinery did not have confidentiality measures, and the right holder lost the right to claim trade secrets.
At the same time, Ma Shihong did not sign a "confidentiality agreement" and "non-compete agreement" with Zhuzhou Machinery Institute and its subsidiaries. In other words, Zhuzhou Machinery and its subsidiaries did not identify the technology cracked by Ma Shihong using "reverse engineering" as their own trade secrets, nor did they take confidentiality measures, so they did not have "confidentiality".
Therefore, there is no trade secret in this case.
Theory**. China has not yet enacted separate legislation on the protection of trade secrets, and the relevant legal provisions are scattered in the Civil Code, Criminal Law, Anti-Unfair Competition Law and other laws. On the other hand, it also faces the crime of "infringing on trade secrets" by powerful enterprises to suppress competitors, especially scientific and technological innovation personnel to start businesses, which restricts scientific and technological innovation and scientific progress.
In recent years, the number of trade secret cases has continued to rise, the subject matter of the case has become larger and larger, the amount of compensation has become higher and higher, and the social impact has also expanded. To this end, an authoritative expert in the field of intellectual property rights in China pointed out: "In the trial of cases, there are many difficult and key issues such as the identification of secret points, the adoption of interim measures, the admissibility of evidence, and the coordination of criminal and civil intersections. He also put forward a few thoughts: (1) Is the protection of trade secrets the interests and property income that rights holders should obtain, or is it to protect fair competition in the market? (2) With the advent of the era of strong protection of intellectual property rights, is it necessary to protect trade secrets strongly or moderately? (3) In the face of many new issues in the protection of trade secrets, is it necessary to legislate separately?
The purpose of protecting intellectual property rights should be to implement the spirit of the "Opinions of the Communist Party of China on Promoting the Development and Growth of the Private Economy", "not only to protect the legitimate rights and interests of state-owned enterprises, but also private enterprises and entrepreneurs, so that all kinds of ownership economies can participate in market competition in accordance with the law, equally and fairly, and be equally protected by law, so as to promote the market economy to become bigger and stronger, so that enterprises can make due contributions in the comprehensive construction of a socialist country."
With a deep understanding of the spirit of the Opinions, we must not use the law to simply protect the market monopoly position of any party.
In addition to the protection of intellectual property rights, the protection of intellectual property talents is also protected. Ma Shihong is a rare talent in the railway industry and has made great contributions to the track technology of the railway system. Ma Shihong put the American products within the scope of the law, using "reverse engineering" to develop Chinese products, which is a contribution to the country, and the special railway products produced by the company he founded were welcomed by the industry and promoted the scientific and technological development of China's rail transit. It should not be convicted of trade secret infringement simply for competing for a market.
Who is technology for"? Whether it is a state-owned enterprise or a private enterprise, any scientific and technological innovation is used by the state. Ma Shihong's sentencing will deprive my country of an important scientific research talent on the railway front, a thriving private enterprise will go bankrupt, the products that have just been innovated will be buried, and scientific research and technology will fail again.
There is competition in the market itself, and the survival of the fittest is the inevitable result of the development of the market economy. The essence of intellectual property disputes is commercial warfare. Therefore, in the face of such cases, should more consideration be given to the means of arbitration, negotiation and reconciliation, rather than imposing penalties? This is also the embodiment of protecting fair competition, protecting the enthusiasm of entrepreneurs, and promoting the spirit of scientific and technological innovation.
The author holds a Ph.D. from China University of Political Science and Law.