Urgent! ! The company sued me for leaking company secrets. What should I do with it? Everybody help me!

Second, the identification of trade secrets

Article 10 of the Anti-Unfair Competition Law defines trade secrets as "the trade secrets mentioned in this article refer to technical information and business information that are not known to the public, can bring economic benefits to the obligee, and are practical and kept secret by the obligee". For business operators, they are more concerned about what information of their own business can and needs to be protected as trade secrets. Therefore, the identification of trade secrets is mainly to solve two problems: what information may be trade secrets? How to screen out the information that really needs to be protected as a trade secret?

(A) the scope of business secrets

Theoretically, from the perspective of the enterprise itself, as long as it is not the information that should be disclosed by law, it can be included in the scope of trade secrets, but in fact, considering the cost and income, the more trade secrets, the better. Defining information that should not be included in the scope of trade secrets as trade secrets not only increases the cost of enterprises, but also increases the unnecessary difficulty of confidentiality work.

Trade secrets include technical information and commercial information. Technical information can be a complete technical scheme, staged technical achievements and valuable technical data, or it can be technical know-how aimed at specific technical problems. Business information is a kind of information source mastered in the process of operating goods and providing services, which can closely connect companies with customers and achieve the purpose of selling products or providing services and making profits.

For example, the trade secrets of small and medium-sized enterprises may often exist in the following aspects:

(1) technology research and development

1, researching and developing new technologies and products, experimental development schemes and methods, important information and phased achievements in the development process;

2, product design, design drawings and key data, formula, process, test data;

3. Construction and configuration of laboratories, and structure, level and scale of R&D personnel;

4, new product test plan, including test method, time, place, data, etc.

5 research and development projects and plans of great significance to the economic interests of enterprises;

6, making scientific research development plan, important forecast and analysis data in the process of planning.

(2) technical achievements and production categories

1, product manufacturing technology and key equipment;

2, technical know-how, raw material formula and its production process, production equipment;

3. New products that have not yet entered the market or applied for patents;

4. The company's major innovations in the process of digesting and absorbing imported technologies and equipment;

5. Unpublished product development plans and product structure adjustment plans;

6, the production plan of new products, product qualification rate, trial production and production;

(3) Marketing business category

1, source and price, supplier list and related information;

2. Marketing strategy, marketing contract, domestic and foreign sales market network and customer list;

3. Internal accounting of cost and price;

4. Negotiation plan, price card and external inquiry and quotation materials in foreign negotiations;

5. Information of partners in foreign cooperation, and related matters that we should undertake confidentiality obligations according to laws or contracts;

6, external bidding, bidding pre-tender estimate and scheme;

7, legal affairs information and related legal documents, etc. ;

8. Unpublished short-term and long-term development strategies, business strategies and measures.

(4) Finance, accounting and human resources

1, unpublished financial budget and final accounts report and various financial statements and statistical statements;

2. Capital status and creditor's rights and debts;

3, the company organization, total wages, personnel management, labor contracts, employee income, personal accounts and related statistical reports;

4, human resources training and development, welfare projects.

(2) Identification standard

As can be seen from the above list, there is a vast amount of information that can be included in the scope of trade secrets in enterprises, and how to screen out the trade secrets that really need to be protected requires certain standards.

According to the provisions of Article 10 of the Anti-Unfair Competition Law, some people divide the criteria for determining trade secrets into secrecy, value, practicality and confidentiality, and only information that meets these four conditions can be called trade secrets. From the perspective of external review of enterprises, such standards are of course correct, but from the perspective of safeguarding their own interests within enterprises, they cannot be copied. At least confidentiality is not the standard for enterprises to identify their own business secrets. Failure to take confidentiality measures means that protection needs to be strengthened, and of course, you can't deny your own business secrets.

Generally speaking, enterprises can consider their trade secrets from the following three aspects:

1, basic requirements

(1) value. The purpose of protecting your own business secrets is to pursue profits, so the first requirement is that the information to be protected has protective value. The value is embodied in the economic benefits or competitive advantages that can be brought to the enterprise, including both actual economic benefits and competitive advantages, as well as potential economic benefits and competitive advantages reflected through future use. Of course, value includes practicality, and only objective information that can be actually used is valuable.

(2) confidentiality. Trade secrets, as the name implies, must be kept confidential, otherwise even information that can bring value to enterprises cannot be protected as trade secrets. However, it should be noted that confidentiality here is relative, including information that cannot be obtained directly from public channels, and information that can be obtained through public channels but whose direct connection with this field is not known to the public. It is not excluded that some enterprises or people with confidentiality obligations know the information, nor does it exclude others from obtaining the secret through legal means, as long as it is not leaked and made widely known in the same industry.

2. Reverse verification

As an auxiliary means, whether an enterprise defines a certain information as a business secret of the enterprise can also be verified from the opposite direction, that is, if the information is leaked, will it cause one of the following consequences:

(1) adversely affects the company's production, operation and development;

(2) Damage the economic interests of the company;

(3) hinder the company's technological development and progress;

(4) Put the company in a passive or disadvantageous position in commercial competition.

3. Is this the best way?

In other words, the protection of trade secrets should be superior to or at least equal to other intellectual property protection methods. This factor needs specific analysis, but there are also some empirical rules for reference:

(1) The business information of an enterprise shall be protected by business secrets;

(2) Unfinished technical schemes, test results, technologies that do not meet the patent requirements, technical information with short life cycle and technical information that loses its rights once it is made public shall be protected by trade secrets;

(3) Before the invention patent is published, before the patent for utility model and design is authorized, trade secrets shall be used for protection;

(4) The technology easily obtained through reverse engineering is suitable for patent protection;

(5) If it meets the requirements for patent application, try to take the core idea as a trade secret and apply for patent protection for the surrounding achievements.

(6) The original materials of trade secret carriers that meet the requirements of originality and reproducibility, such as drawings, models, computer documents, etc., should be preserved, which is not only strong evidence of trade secrets, but also can be considered for copyright protection once trade secrets are leaked.

(3) keeping secrets

Confidentiality refers to classifying the business secrets of enterprises and limiting the scope of knowledge. Article 9 of the Law on Guarding State Secrets divides state secrets into three levels: top secret, secret and secret, which can be used for reference by enterprises. Of course, in order to facilitate the management of small and medium-sized enterprises, trade secrets can also be divided into "top secret" and "secret" two levels. No matter what the classification method is, in general, top secret matters are major research projects and major decisions involving the company's development and interests. It is generally appropriate for business leaders to make the final decision, and their understanding is limited to the main leaders of the company and the people directly designated by them.

Because the business secrets of an enterprise are often produced in the process of production and operation, the heads of various departments of the enterprise and the project leaders who undertake R&D tasks should be the first responsible persons to identify the business secrets of their own departments (projects), and only they know best what information they contact and master needs to be protected by business secrets. An enterprise may formulate a set of procedures and related documents (such as the approval form for determining confidential matters), and all departments shall preliminarily screen the business secret information according to the above-mentioned criteria for determining business secrets, and preliminarily determine the classification, so as to ensure that the departments that generate business secrets shall undertake the confidentiality obligation in time.

(4) Decryption

If a secret is kept, it will be decrypted. Although commercial secrets are different from state secrets, there is no conflict between national interests and the public's right to know. Theoretically, the duration of confidentiality is entirely determined by the enterprise itself. However, as mentioned above, information that has been kept confidential unnecessarily remains confidential, which will only increase the burden on enterprises, and will also make people question the business secret system of enterprises, and then doubt whether their so-called business secrets are established.

1. Factors to consider when decrypting:

(1) is known to the public.

What the public knows includes: it has been made public by the media, widely used by peers, and generally mastered by technicians in related fields. The technical information of public products that can be obtained through intuitive or simple methods such as mapping and dismantling is regarded as known to the public. Business secrets known by people who have confidentiality obligations do not constitute public knowledge.

(2) Whether it can still bring economic benefits or competitive advantages to enterprises, and whether other intellectual property protection methods are better than trade secret protection methods.

(3) Whether the information protected as a trade secret is proved to be practical, objective and feasible.

(4) Whether corresponding confidentiality measures have been taken, and whether the relevant personnel know that the information they have or come into contact with is confidential.

2. Decryption process

The business secret management unit of the enterprise or the secrecy commissioner is responsible for investigating the above-mentioned factors of confidentiality matters on a regular basis, and for those who meet the requirements of items (1) to (3) but do not meet the requirements of item (4), instruct the relevant departments to take corresponding secrecy measures in time, and investigate the corresponding responsibilities of those responsible for human negligence; For those who do not meet any of items (1) to (3), put forward opinions on decryption and explain the reasons, and report to the competent leaders of the enterprise for deliberation and decision after consultation with the relevant departments of confidential matters.

Third, the management of trade secrets.

Business secret management has two purposes: to minimize leaks; Once leaked, it can be handled in time and protected by law.

(A) management structure

Depending on the scale and actual needs of the enterprise, a relatively large-scale enterprise may set up a special management committee or management team, while a smaller-scale enterprise may be managed by the company's legal department or only set up a confidentiality commissioner. We should pay attention to simplifying the principle and try to narrow the range of people who are exposed to trade secrets; At the same time, no matter what kind of structure, it is necessary to ensure that it can report directly to the main person in charge of the enterprise when necessary and handle emergencies in time.

The duties of the special management team or confidential personnel mainly include:

1, implement confidentiality rules and regulations and complete daily tasks;

2. Implement the confidential working documents and confidential working arrangements issued by the company;

3. Check and assist the heads of all departments to improve the confidentiality system and measures for key positions of the company;

4. Check the implementation of confidentiality rules and regulations by various departments, report problems in time and put forward handling opinions;

5. Cooperate with all departments to trace cases of leakage and theft, plug leakage loopholes, and put forward opinions or suggestions on those responsible for leakage according to regulations;

6. Publicize the knowledge of confidentiality, so that the employees of the company can enhance the concept of confidentiality and abide by the confidentiality laws and regulations.

The responsibilities of the person in charge of the enterprise's security work mainly include:

1, release the company's confidentiality rules and regulations and related documents;

2. Determine the classification of the company's business secrets;

3. Coordinate the confidentiality work of various departments;

4. Approve the external release and exchange of confidential information of the Company;

5. Listen to the implementation of the company's confidentiality work, report the existing problems and emergencies, and make a decision.

In addition, the heads of the technology research and development, production, finance, sales and other departments of the enterprise should also bear the corresponding confidentiality responsibilities, mainly including:

1, do a good job of confidentiality within the scope of this department, and be responsible for the primary selection and initial classification of business secrets involved in this department;

2. Abide by various confidentiality systems, implement the company's rules, regulations and decisions on confidentiality, and put forward problems in time when found;

3, in charge of the confidentiality work within the scope of at least once a year, and the written materials formed by the self-examination shall be submitted for the record.

(2) Safety measures

1, about safety measures

According to the provisions of Article 10 of the Anti-Unfair Competition Law, whether confidentiality measures have been taken is one of the important elements for identifying trade secrets externally, so it is also an essential content for protecting trade secrets within enterprises. But at the same time, common sense tells us that there is a limit to the use of confidentiality measures, and no matter how advanced the measures are, they can not completely guarantee that business secrets will not be leaked. After all, trade secrets are essentially intangible information. We can prevent tangible carriers from being maliciously spread, but it is impossible to stop people's thoughts and exchanges. Moreover, the strength of taking security measures is closely related to the cost of enterprises. Because of this, the legal determination of whether it constitutes a trade secret does not require the obligee to take confidentiality measures to prevent the secret from leaking 100%, otherwise it does not need legal protection.

Regarding this issue, Article 11 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Civil Cases of Unfair Competition has a relatively clear statement for reference, and the third paragraph of it stipulates as follows:

"One of the following circumstances, under normal circumstances, is enough to prevent the disclosure of confidential information, as the obligee has taken security measures:

(a) limit the scope of confidential information, only inform the relevant personnel who must know its content;

(2) Take preventive measures such as locking confidential information carriers;

(3) The carrier of confidential information is marked with a confidentiality mark;

(4) Using passwords or codes for confidential information;

(5) signing a confidentiality agreement;

(six) to restrict visits to confidential machines, factories, workshops and other places or put forward confidentiality requirements;

(seven) other reasonable measures to ensure the confidentiality of information. "

There are two points worthy of attention in this provision. One is "one of the following circumstances" and the other is "sufficient under normal circumstances", which can be summarized in one sentence, that is, the minimum requirement for confidentiality measures in law is "to guard against gentlemen but not villains", which is of course better, but it does not meet or hinder the composition of trade secrets. In layman's terms, an enterprise should lock its own door and let others know that what is inside the door is the secret of the enterprise.

Knowing this clearly, I believe many SME owners will no longer feel that business secrets are so unattainable. The seven security measures listed in the judicial interpretation can be achieved through proper attention and prevention in the daily operation of enterprises, not to mention that the law only requires one of them. Of course, as the obligee, the enterprise itself should do as much as possible. After all, prevention beforehand is better than remedy afterwards.

2. Possible ways of leaking secrets and corresponding measures:

(1) Internal employee leaks.

On-the-job employees may inadvertently reveal business secrets, or they may be driven by interests to provide others with business secrets of the enterprise. After leaving the company, employees may also reveal the business secrets they learned when they were on the job.

L issue employee handbook to new employees, sign employment commitment letter, and inform them of confidentiality obligations;

L limit the scope of personnel who know business secrets and sign confidentiality agreements with employees;

L Conduct regular confidentiality education for employees to improve their confidentiality awareness;

L sign a non-competition agreement with employees who have important secrets.

L for those who are about to leave, take back the confidential information (including copies and various objects) kept by them, transfer them from important positions in advance, and send someone to take over the customers;

L sign a letter of commitment to leave the company, and handle the handover procedures of the commercial secret carrier;

Interview with the resigned personnel, reaffirm the confidentiality obligation, know the whereabouts and duties of the resigned personnel in time, judge whether it is harmful to the company's interests, and send a letter to the receiving unit to inform the resigned personnel of their duties and confidentiality obligations in the company when necessary.

(2) Stealing secrets from a third party

Business secrets of enterprises are valuable and can bring realistic or potential competitive advantages to enterprises. Because of this, they often become the target of competitors stealing secrets.

L establish a system for the management, borrowing and copying of confidential documents;

L Establish the destruction system of waste documents and carriers;

L take security protection measures for computer information systems;

L establish a confidentiality and notification system for confidential meetings;

Establish early warning and monitoring systems in key areas;

(3) the loss of trade secrets in foreign activities

Foreign activities include visits and inspections by external units or individuals; Foreign joint ventures and cooperation; Publicizing and reporting, publishing papers or scientific and technological documents, etc. All these may lead to the disclosure of trade secrets.

L strictly limit the scope of knowing business secrets in foreign activities;

L signing confidentiality contracts in foreign joint ventures and cooperation;

L promotional materials must be subject to confidentiality review;

L establish a review system for the publication of papers or scientific and technological achievements;

L establish a management system for visitors, residents and visitors.

(3) Leakage warning and response

As mentioned above, no matter how advanced the security measures are, it is impossible to guarantee not to leak. Therefore, it is necessary to establish a set of response system in the event of a leak, to ensure timely response in the event of a leak, to minimize losses, to save and restore as the primary goal, to minimize and slow down the loss of trade secrets as much as possible, and to keep them confidential. At the same time, the legal responsibility of the infringer shall be investigated externally, the losses caused by the leak shall be compensated, and the person responsible for the leak shall be punished internally to prevent the leak from happening again.

1, early warning

"Early warning means warning before danger appears" (Wikipedia). Due to the irreversible nature of trade secret disclosure, it is particularly important to predict and warn before the event occurs.

(1) forecast

As the first responsible person, the confidential personnel and the person in charge of the department (project) should bear the responsibility of monitoring. Once it is found that the business secrets of this department or this project are leaked or may be leaked, it shall immediately notify the company's business secret management unit or security Commissioner, and report to the enterprise leaders when necessary;

(2) Investigation

After receiving the report, the confidential person shall conduct an investigation as soon as possible, and conduct a comprehensive investigation on the trade secrets that have been leaked or may be leaked, including: the object of disclosure, whether it has been publicly or partially disclosed, the specific means of infringing the trade secrets, the possible damage consequences caused by disclosure, etc. And report the survey results to the business leaders in a timely manner.

(3) Preliminary assessment and disposal

L If there is a possibility that the leakage has not been exposed, the relevant personnel should be instructed to take safety measures immediately. Where human error is involved, the responsible person shall be investigated for corresponding responsibility;

L In case of a leak, the secrecy officer and relevant legal personnel should make a preliminary assessment of the development trend of the leak, the possible impact and consequences on the enterprise and the measures that the enterprise can and can take in the shortest time, and submit the assessment opinions to the enterprise leaders for decision.

2. Emergency response

(1) form an emergency response team.

An emergency response team should be set up for major leaks, consisting of business secret management units, relevant business departments and external lawyers. , study and take corresponding strategies and measures.

(2) Switching protection mode

According to the degree and situation of leakage, we can consider applying for a patent or copyright registration to protect the threatened trade secrets.

(3) Take measures to transfer employees suspected of leaking secrets.

That is to say, the employee will be transferred from his original post, so that he will no longer be in contact with the company's business secrets, and at the same time, he will be educated on confidentiality to prevent the occurrence or expansion of the leak.

(4) issue a warning to the business secret acquirer.

When necessary, send a letter to the infringer who may have obtained or obtained the company's trade secrets, warning him that what he has obtained belongs to the company's trade secrets, and asking him to immediately stop the infringement and take the initiative to seek reconciliation with the company.

(5) Seek reconciliation on the premise that there is an infringer and the infringer agrees to pay compensation.

In the case that the result of the leak has already occurred, reconciliation is the priority scheme to avoid further losses caused by the expansion of the scope of trade secrets. When making a settlement plan, we should give full consideration to the infringed's assets, reputation and the amount of compensation agreed to pay, analyze the possibility of successful settlement, make the best settlement plan, and at the same time fully collect and prepare evidence to prepare for further measures.

3. Seek legal relief.

As a last resort, it includes reporting administrative protection to the administrative department for industry and commerce, suing the court for civil protection, and reporting criminal protection to the public security organs. The legal basis mainly includes the Anti-Unfair Competition Law, the Criminal Law, and the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Infringement of Intellectual Property Rights.