The effectiveness of the reverse engineering trade secret law
|School||East China University of Political Science|
|Course||Civil and Commercial Law|
|Keywords||Trade secrets Reverse engineering Secrecy Prohibit reverse engineering convention|
February 1, 2007 implementation of the \reverse engineering, which is a huge step forward for the development of China's trade secret law. 12 of the Act is not only for the term of the reverse engineering is defined statutory reverse engineering effectiveness, that the legitimate defense of trade secrets infringement. Violation of trade secret rights of defense is the main effect of the reverse engineering, reverse engineering of trade secret rights. Meanwhile, the judicial interpretation of Article 9 \The secret of the presence or absence, whether the information constitutes a trade secret one of the factors, this is another effect of the reverse engineering, reverse engineering of trade secrets identified. The main part of this paper is to analyze the effectiveness of the reverse engineering. Legitimate and effective reverse engineering Efficacy of the logical premise, therefore, the first chapter of legitimate reverse engineering elements defined reverse engineering the effectiveness of the two main trade secret law, and on this basis to explore . Legitimate reverse engineering elements, as a technical term in the technology transfer practice produced and developed the technology itself neutrality decision itself does not produce the inevitable legal or illegal, and thus reverse engineering value evaluation is not for the technology itself, but to evaluate the implementation process for the reverse engineering of objects as well as reverse engineering and purpose. Reverse engineering of objects in terms of, first, the product must be obtained from public sources obtained from public sources product \thus the open market is undoubtedly the main source; (2) must be legitimate and honest means. Both from access to the scope and access to the means of protection the reverse engineering objects legitimacy. Second, reverse engineering implementation of the person entitled to property rights must be the implementation of the object, the disposition of property rights, in practice also has a black box closed rules of evidence to the contrary. On the reverse of the implementation process of the project, you must ensure that the whole process does not come into contact with the confidential information of others, prior to the implementation of the implementation of personnel screening, the implementation process cleanroom procedures to avoid contact with access to secret information. Finally, the results of the implementation of the reverse engineering is not recognized a reverse engineering legitimate factors, because trade secret law does not prohibit legitimate copy the behavior. Reverse engineering on the identification of the trade secrets, broken ring secret that reverse engineering is, depending on the degree of difficulty of reverse engineering. Easy to reverse the information there is no secret, can not be protected as a trade secret, that is easy to reverse engineer undermined the secrecy of the information; is not easy to reverse the information has a secret, constitute competent business can draw two conclusions: secret, and that is not easy to reverse engineer did not destroy the information secret. In fact, the reverse engineering is only a qualitative term in solving trade secret disputes, reverse engineering but also for the quantitative analysis that is to see the degree of difficulty of reverse engineering technology, capital, time consuming degree. Reverse engineering to specific analysis, this foreign legalistic literature are unanimous. Reverse engineering trade secret rights, trade secrets legal literature in countries will reverse works identified as the major limitation of trade secret rights, but there is a very controversial practice, that the contract by convention prohibiting anti- to exclude the right to limit the project terms. This paper argues that such exclusion efforts are invalid because prohibit reverse engineering terms and conditions beyond the scope of rights of trade secret rights, to break the patent law, trade secret law this equity to the detriment of the public interest, contrary to the country to encourage technological innovation policy.