The Seminar on Hot Issues of Trade Secret Protection&the Legislative ImprovementinChina’s Legal System of Trade Secret was held at China University of Political Science and Law(“CUPL”)on November 24, 2020.
At the opening ceremony, Associate Prof.Tao Qian, Director of the Intellectual Property Innovation and Competition Research Center of CUPL, introduced the background of this seminar and expressed a warm welcome to the guests. In July 2020, the review result of the seventh batch of academic innovation teams for young teachers of CUPL was announced, and the innovation team of the Trade Secret Protection Lawledby Mr. Tao Qian was approved. The team members include seven young teachers from different law majors, namely Tao Qian, Li Xiaohui, Li Lin, Shi Yacong, Zhang Xian, Zhang Jiahua and Zhu Yuanshi. This team will spend three yearsincarrying out systematic research on China’s legal protection mechanism of trade secrets. This seminar aimed to share the team's preliminary research results, andlisten to theopinions and guidance of the guests.
At the opening ceremony,Guo He, Vice Chairman of the Intellectual Property Law Association of China Law Society, Vice Chairman of the China Intellectual Property Society, anda professor of the Intellectual Property Academy of Renmin University of China, delivered an opening speech. Afterwards, Prof.Xu Shenjian, Dean of the School of Juris Master in CUPL, also delivered an opening speech.
Topic One:TimeMission of China's Trade Secrets Law
On this topic, the speakers discussed the development of the trade secrets law and the latest legislative development in the protection of trade secrets. The keynote speaker, Prof.Lin Xiuqin, Dean of the Intellectual Property Research Institute of Xiamen University, gave a speech titledReview and Analysis of Legislative Trends in the Legal Protection of Trade Secrets. In her speech, she reviewed the history of the trade secrets protection systems, introduced the latest legislative developments at home and abroad, and based on the theoretical basis of intellectual property of trade secrets, drew on a conclusion that “the era of intellectual property of trade secrets” is coming. In the speech session on this topic, Associate Prof.Guo Dezhong, Associate Dean of Beijing Institute of Technology School of Law, based on typical American legal precedents, explored the determination of software secrecy in his speech titledRecognition and Protection of Software Trade Secrets. During the panel discussion on this topic, Associate Prof.Liu Lijuan, Director of the Intellectual Property Center of Beijing Foreign Studies University Law School, proposed that regardless of whether trade secrets are to be legislated separately or to follow the current legislative model scattered acrossdepartmentlaws, from the perspective of "the legal basis of the system, it is reasonable to regulate it as an act of unfair competition, and at the same time, it is necessary to recognize it as a quasi-property right that can be transferred by permission, but it is not a typical property right in the sense of absolute right". The difficulty in judicature now lies in the establishment of specific standards. Subsequently, Associate Prof.Fu Jicunfrom the Civil, Commercial and Economic Law School, CUPL raised two issues. First, in the process of turning trade secrets into rights, it is difficult for legislation to solve the problem of its publicity method as an absolute right, and the problem that infringement of trade secrets emphasizes specific means. Second, if reverse engineering defenses can be excluded by agreement, the restrictions on trade secrets can be rendered unfeasible through licensing contracts and commodity sales or service contracts. This requires us to think about the balance between right protection and public interestsata broader level. Finally, as themoderatorof the topic, Prof.Feng Xiaoqing, Vice President of China Intellectual Property Law Association and Director of the Institute of Intellectual Property Law of the Civil, Commercial and Economic Law School, CUPL, made a summary.
Topic Two: China's Special Legislation for the Protection of Trade Secrets
As the moderatorofthis topic, Prof.Qu Sanqiang, President of the Beijing Intellectual Property Law Society, put forward his own views on the nature of trade secrets rights. In the keynote speech, Prof.Ma Yidefrom the Center for Studies of Intellectual Property Rights of Zhongnan University of Economics and Law demonstrated the necessity of trade secrets legislation from multiple angles. Associate Prof.Tao Qianfrom the School of Juris Master in CUPL introduced his ongoing research on the basic theory and normative interpretation of the trade secrets protection law. Prof.Fan Xiaobofrom the College of Humanities and Law of Beijing University of Chemical Technology mainlytalked aboutthe determination of major losses in trade secret crimes.
Topic Three: Basic Theory of Trade Secret Law
As the moderatorofthis topic, Prof.Xu Xuan, Dean of the Intellectual Property School of Jinan University, guided the discussionamongthe speakers about the basic theory for the construction of a legal system of trade secrets. As the keynote speaker of this session, Prof.Li Yangfrom Sun Yat-Sen University School of Law shared his thoughts on several basic issues in trade secret protection.Sun Shan,an associateprofessor of the School of Economic Law of Northwest University of Political Science and Law, defined the legal attributes of trade secrets, which is the starting point of trade secret protection.Xiong Wencong,an associateprofessor of Minzu University of China Law School, shared his thoughts from the perspectives of the previous speakers.
Topic Four: Trade Secret Protection from the Perspective of Comparative Law
Asthe moderatorofthis last topic, , Prof.Fei Anlingfrom the College of Comparative Law of CUPL, believes that establishing and protecting the rights based on trade secrets should be the focus of the legislation. In his keynote speech, Prof.Huang Wushuang, Dean of the Intellectual Property School of East China University of Political Science and Law, analyzed the differences inthetrade secret protectionsystembetween China and the United States as reflected in certain provisions of China-US economic and trade agreements. Associate Prof.Zhu Dongfrom the Intellectual Property Research Institute of Xiamen University gave a brief introduction to the origin and attributes of trade secrets.
During the panel discussion on this topic,Deng Heng,an associateprofessor of the Department of Law of North China University of Technology,believed that when the loss of the trade secretholdercannot be determined,it should be calculated withthe infringer’s sales volume multiplied by theholder’s unit reasonable profit. This calculation method follows the existing judicial interpretations on compensation for infringement of patents, trademarks and copyrights. Subsequently, Mr.Zhang Xianfrom the School of Juris Master in CUPL pointed out that there were many inconsistencies in the legislation related to trade secrets in the United States. In this case, theUniform Trade Secrets Actbecame the model legislation of each state, covering civil aspects and criminal aspects at the federal level and gradually expanding the scope of protection of trade secrets. Mr. Zhang Xian also analyzed the exemption systems of the US and expounded what China can learn from the US trade secret protection system for the entity and procedure of the legislation in trade secrets.
ConclusionandAcknowledgement
After the guests’ speeches, Prof.Liu Zhihui,DeputyDean of the School of Juris Master in CUPL, pointed out that this seminar, which involved both hot issues of justice and in-depth discussionsaboutbasic theories from the perspectives of domestic law and vision-broadening comparative law, is a real "brainstorm" that benefited both online and offline participants. She expressed her sincere thanks to all the speakers and discussants. At the same time, she pointed out that the academic innovation team of young teachersontrade secret protectionlawof CUPL was the first one after the faculty of the School of Juris Master was substantiated. The research results of this team, which is composed of excellent teachers from different disciplines, are worthy ofthe wait. Associate Prof.Tao Qian, Director of the Intellectual Property Innovation and Competition Research Center of CUPL, summarized the speeches and talks of this seminar, and expressed his sincere gratitude to the academic predecessors and colleagues inside and outside the university for their support.And then, the seminarcame to a successful conclusion.
