Reflections and practices on technology secrets and their transfer and transformation (I)

At present, the country's macroeconomic policy is shifting from consumption and investment drivers to innovation drivers, and the transfer and transformation of technology is strongly advocated and promoted from the policy side. Shanghai has also been entrusted with the important task of building a national science and technology center. With the further increase in national policy guidance and government support, and the further improvement of the construction of the National Technology Transfer Eastern Center, the vigorous development of technology transfer and transformation can be fully expected in the short term. Against such a background, it is necessary to sort out and study the specific issues involved in the process of technology transfer and transformation.

"Technology" is an abstract concept, in order to achieve transfer, transformation, the "technology" must first be concretized into the "subject" that can be transferred, transformation, these subjects are Various forms of technical achievements. "Technical results" can be defined in terms of technology, economics, etc., but the definition summarized by the Supreme People's Court from the practice of dispute resolution may be of more practical significance. Article 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Technology Contract Dispute Cases defines technical achievements as "technical solutions involving products, processes, materials and their improvements made by using scientific and technological knowledge, information and experience, including patents, patent applications, technical secrets, computer software, integrated circuit layout designs, new plant varieties, etc.". ." In this definition, a technical result is a technical solution in different legal forms, and these legal forms include patents, patent applications, technology secrets, computer software, integrated circuit layout designs, and new plant varieties. In other words, patents, patent applications, technology secrets, and computer software are all transferable and transformable as technological outcomes. In these forms of technical solutions, patents, patent applications are confirmed and defined through the national public rights, the content and boundaries are clear, computer software, integrated circuit layout design as technical results can be intuitively perceived, the content is also more specific and clear. In contrast, technology secrets this technology achievement form is more complex, it has no state public rights, only rely on the definition of enterprise or personal private rights, its content due to the need for confidentiality is usually difficult to intuitively perceive, but due to various reasons, in the enterprise's technology achievements, technology secrets is a lot of existence. In the transfer, transformation of technical results, how to only by private right to create, but also a very high confidentiality requirements of technical secrets, has become a very important practical problems. Here, the author on this issue to talk about their own one tube of opinion, in order to teach the generous.

The so-called "technology secret", according to the provisions of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Technology Contract Dispute Cases, refers to "technical information that is not known to the public, has commercial value and is subject to confidentiality measures taken by the right holder". People generally will technology secrets of the above concept is summarized as three: non-public, commercial value or practicality, confidentiality. In practice, "technology secret" is also sometimes called "know-how", "generic technology", "know-how". " etc.

The prerequisite for the transfer and transformation of a technology secret is the existence of the technology secret. According to the above, there is no registration, registration or other national public authority procedure for the identification of a technology secret, which is entirely dependent on its owner's own creation. A has commercial value, more mature technology program is the core of the technology secret, but the owner of such a technology program of the exclusive right to get legal protection, or, whether the law recognizes and protects such a technology program "exclusive secret right", but also depends on the owner of its creation of whether or not Consistent with the technology secret "three sexes" requirements. Below, on the technology secret "three sexes" to make a simple overview.

        The first is "non-disclosure".It's easier to understand. Since it is a secret, it cannot be known by everyone. In judicial practice, whether a technical solution is "non-public" is judged mainly from the following aspects.

1. Is general knowledge or practice in the technical or economic field to which it belongs.

2 Whether it is directly accessible by observing the product, e.g., size, construction, materials, simple combination of components, etc..

3. Whether it has been publicly disclosed in a public publication or in the media.

4 Whether it has been made public through public exhibitions, meetings, etc..

5 Whether it is easily accessible through open channels or at no cost.

As long as the answer to one of the above five questions is "yes", it cannot be a technical secret. Only when all the answers to the above five questions are "No", can it be recognized as a "technical secret" and protected by law.

As for "commercial value or practicality", in layman's terms, technical solutions are required to solve certain real-life problems, rather than just theoretical speculations on paper.The real-world problems solved can be an improvement in the quality, efficiency, or cost of a product or service.In short, it is to be able to provide a direct or indirect competitive advantage to its owner. The law does not provide quantitative indicators of how much or how big a real-life problem can be solved, and in practice, this condition can be met by using common sense to judge that it has some commercial value or practicality.

"Non-disclosure" and "commercial value or usefulness" are both technical secrets required by the relatively objective state, to a certain extent by objective factors, not its owner can completely determine the constraints.The third nature of technological secrets, "confidentiality", is entirely dependent on the secrecy measures taken by the right holder in respect of them.In other words, whether a technological solution is confidential or not depends entirely on what the rights holder does. This is the key to whether a new technological solution becomes legally protected and brings exclusive benefits to its owner.

In practice, the secrecy of a technical solution is judged mainly on the basis of the secrecy measures taken by the right holder. The more adequate these confidentiality measures are, the higher the confidentiality. In general, the more adequate confidentiality measures should at least involve the custody, storage, transmission, and use of the technical solution, and their content should at least be expressed in the company's officially published company policy.

        Confidentiality has become a core system in more and more companies. For technology-based or innovative companies, corporate confidentiality may even be a matter of survival.A more complete system of confidentiality should include such aspects of the content. First of all, the definition of confidentiality, that is, the provisions of what information and documents need to take confidentiality measures; followed by clear provisions of confidentiality measures, such as the requirement for employees to sign a confidentiality undertaking, in the disclosure of confidential information to sign a confidentiality agreement, the confidential information carrier or medium of custody, storage requirements, etc., this is the core content of the confidentiality system. For different levels of confidential information should be taken different confidentiality measures, to show the difference, but also shows the importance of the really important confidential information; Finally, to specify the violation of the confidentiality system punishment, which is the basic basis for the violation of the confidentiality system for employees to punish. If there is no company formally formulated, announced the violation of the confidentiality system of punishment, in the case of employee leakage, resulting in company losses, the company's temporary punishment may violate the "labor contract law" of the relevant provisions.

        With regard to the development of confidentiality measures in the confidentiality system, it should be tailored to the company's actual situation to ensure that it is operational, otherwise it would amount to nothing.Confidentiality measures should cover the custody, storage, transmission, disclosure and use of confidential information. Broadly speaking, in custody, storage, according to the different levels of secrecy, the confidential information to designate a person to store, storage places should have a certain degree of physical separation, at least to ensure that can not be freely entered or contact; in the transmission, the requirements of each transfer link should have a record, and can be traced back. If you want to disclose, sign a clear, complete confidentiality agreement should be a necessary prerequisite. In the use of confidential information, the use of confidential information to the strict management of personnel, can require the signing of more stringent confidentiality undertaking than the general staff, if necessary, can also be taken non-compete and other measures. In short, the choice of confidentiality measures both practical and feasible, to ensure the safety of confidential information, but also to comply with relevant laws and regulations. For a specific company, how to develop appropriate confidentiality measures has a certain complexity and professionalism. We can discuss it separately and specifically, so we will not repeat it here.

When a technical secret is effectively created, it becomes an asset of the owner-intangible assetThe value of technology secrets, like all assets, can only be realized if they are used. Like all the assets, like the technology secret only to use, can play out as the value of assets. Many enterprises in the use of technology secrets is limited to their own use, to those who do not have the conditions to use the technology secret, also shelved. This is actually a big waste. In addition to their own use, the technology secret can also through the technology transfer, transformation of the way to use, also can transform technology secret into direct economic benefits.

(Source: Wang Gang, Invited Expert, Eastern National Technology Transfer Center)

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