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IPR: IP Case Study: Keeping Trade Secrets
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IP Case Study: Keeping Trade Secrets

BT 201808 IPR 01往期我们探讨过多种防范侵权的问题,本期我们将讨论商业机密相关内容。商业机密普遍存在于各个行业中,它是一种有价值的知识产权形式,遗憾的是它的重要性经常被所有者低估或忽视。其实,商业机密作为企业的无形资产,其价值难以估量。商业机密具有四个基本特征:其一是秘密性。商业秘密首先必须是处于秘密状态的信息,不可能从公开的渠道所获悉。第二,商业秘密必须是一种现在或者将来能够应用于生产经营或者对生产经营有用的具体的技术方案和经营策略。第三,保密性。即权利人采取保密措施,包括订立保密协议,建立保密制度及采取其他合理的保密手段。第四,价值性,指该商业秘密自身所蕴含的经济价值和市场竞争价值,并能实现权利人利益的目的。

商业机密的也有自身优点,那就是它在理论上享有无限期的保护期限。只要保密措施有效,其作为机密的价值就永远存在。但另一方面,商业机密很容易被窃取或丢失,而一旦机密泄露,则很难挽回损失。

在这里,我们用荷兰企业Wuvio公司的案例来向大家说明商业机密保护的重要性。该公司是建筑、能源等领域的生产商,他们入驻亚洲时,首先在香港注册成立了公司,而后在2013年拓展至大陆地区。公司精心打造了一个中国商标并在中国进行了注册,与此同时,他们非常注重商业机密的保护,“预防对我们来说至关重要”。因此,公司所有关键部件仍然在荷兰生产,这样一来可以确保核心技术不被窃取。Wuvio中国区代表Rob te Braake还提醒大家在中国开展业务需要熟悉中国的商业文化差异,与了解中国知识产权制度的律师保持密切合作也非常重要。

BT 201808 IPR 02Nearly all businesses in all industries and sectors possess trade secrets. Trade secrets are a valuable and highly useful form of intellectual property that are often undervalued and overlooked by their owners. This is not at least the case in the service sector where the relative value of trade secrets as intangible assets can be extremely high. For example, a logistics firm may not hold any patents or few trade-marks and substantial copyrights, but the value of its operations could heavily derive from information contained within client lists and standard procedures.
 

A considerable advantage for trade secrets is that unlike some other forms of IP rights, such as patents and copyrights that have a finite term, trade secrets can theoretically enjoy an infinite term of protection so long as the trade secret remains just that - a secret. The main difference between protecting something by patent or as a trade secret is that while technical information is publicly disclosed in patents, it is kept away from the public eye in trade secrets. A trade secret can last forever as long as the confidentiality measures that protect it continue to work. An invention patent typically expires after 20 years.
 

On the other hand, legal protection of trade secrets is easily lost. Once the information becomes public knowledge, it no longer enjoys any legal protection. As a result, prevention is the golden rule when it comes to protecting your trade secrets, because once your secret is out, there is usually very little that you can do about it. China, like most other countries, provides a legal framework for protection of trade secrets, and the law provides for remedies in the event that your trade secrets are unlawfully disclosed.
 

Case Study

The Dutch SME Wuvio is a market leader in producing chemicals to combat dust in construction sites, energy producers, mining and dry bulk companies. Wuvio works with unique solutions, which require a structured approach to intellectual property (IP). Rob te Braake, Wuvio’s representative in China, shares his experiences and gives some practical tips for any business looking to protect this kind of intellectual property portfolio.
 

Wuvio had been active in Europe for 11 years when they decided it was time to make a move to China. “Many companies active in the same industry claim to offer what we offer, but are either not as effective, more expensive or not biodegradable. This gives us a strong advantage in China”, Rob states confidently. “We first set up a limited company in Hong Kong in 2011, and then branched out into Mainland China in 2013.”
 

Wuvio carefully developed a Chinese trade mark and registered this in China, but according to Rob, the most important part of the company’s IP strategy are their trade secrets. “We have no patents registered in Europe or in China, because we don’t want our chemical solutions to become available to the public in 20 years time. We also don’t like to depend on enforceable rights because as an SME we simply don’t have the resources to keep chasing infringements. Prevention is key for us.”
 

“We are currently importing products from the Netherlands, but even when we will move production to China, we will always keep the production of critical components in the Netherlands, because they are key to our products”, Rob continues. “We’ve checked ourselves if the formula of our solutions can easily be retrieved through reverse engineering, but successive attempts have not been successful. I am therefore confident that our solutions are adequately protected through this way.”
 

As a final recommendation, Rob says that it’s important to work with a qualified lawyer that knows the Chinese IP system, and that doing business in China requires a long breath. “Getting familiar with the Chinese business world, cultural differences and the distance between your head office in Europe and the office in China may be difficult at first, but you will get used to it as you progress. You just need to be confident and find the right people to work with.”
 

Lessons learned:
• Assess if your innovations and technology would be better protected as trade secrets or as a registered patent.
• Don’t disclose any valuable information unless absolutely necessary.
• Build a strong network of trusted business partners and employees and have them sign well-drafted contracts, non-disclosure and non-competition agreements.

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