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Wang lawyer litigation is the right person to correctly use the weapon of law to one of the effective means to protect its trade secrets.is an important legal rights.How to exercise the right to appeal to commercial secrets can be protected by law.according to the author litigation practice mainly from the following aspects were discussed.First, commercial secrets and infringement of human rights even before preparations for the proceedings, the plaintiff must do everything possible to collect all the evidence collected.necessary for the preservation of the evidence, all the evidence collected after the proceedings before the proceedings started.Secret complex commercial cases, the information from the organizations charged to court, each link must be made stricter.Commercial secrets as plaintiffs in the prosecution case, lawyers or legal experts should suit.Analysis of the final checks whether to allow professionals to form trade secrets infringement cases.Better protection of commercial secrets at this stage should :(1) accurately determine the scope of the request and the case file before the proceedings should be the basis of the evidence available to accurately determine the scope of the request and litigation case.If the file did not accurately identified in the case, the first to compare the case to file.In evidence before the expiry of the case accurately choose a more appropriate case.Because the basis of the "Supreme People's Court on a number of lawsuits," and the deadline for completion of the proof,The plaintiff shall not change the claims.Therefore, the burden of proof plaintiffs must expire before the case rights advocates and foes.If at the expiry of the burden of proof would not want to change or increase in the court proceedings to support the request.If litigation is necessary to increase or change request, it shall be prosecuted, as this would increase the plaintiff's litigation costs.may also lose the right to appeal.(B) The preservation of evidence and infringement of trade secrets in violation of commercial secrets of the plaintiff will cause irreparable damage to the emergency situation,available to the defendant or the plaintiff is unable to obtain crucial evidence in a pre - or post-indictment preservation applications to the People's Court.applications can be made in the plaintiffs sequestration, and the seizure of commercial secrets fixtures, imposed a ban disclosure violations,use protective measures such as trade secrets, the court received an application will be taken or not taken seriously consider protective measures.If the court agreed to preserve the evidence, the plaintiff must provide the value of the property involved in security.This is the most effective protection of commercial secrets of the plaintiff, one of the most viable option.Second, the plaintiff has the right to stand trial in the court process is proof that inquiry process, in favor of the plaintiff can also serve as critical,According to the theory and the civil legislation,commercial secrets or proof of "who advocate who is the burden of proof" rules of evidence, the plaintiff is a relatively harsh terms.However, at this stage, which must also bear responsibility.In order to avoid or reduce their legal obligations to the accused often find ways of setting up obstacles to conceal evidence of violations.If the plaintiff can request submitted sufficient evidence of its proceedings, it may take a risk.So the burden of proof on the plaintiff is particularly important.(A) First, the plaintiff has to prove that the establishment of commercial secrets.commercial confidentiality enjoyed by the plaintiff, the plaintiff also want to use legal means to protect their business secrets.must first prove that the establishment of commercial secrets, the basic focus of this trial.Commercial secrets is not the crux of the matter is whether the information is public knowledge.Operational information is relatively easy to adduce evidence to prove that the burden of proof is the technical information much more difficult.The plaintiff has the burden of proof should be fully consider the commercial secret is not open technology.Many companies are already among inadvertently open a commercial secret, for instance, on the one hand, confidentiality,one went to the patent application."The patent is characteristic of the public not to apply for a patent on the technique of commercial secrets.technical or commercial secrets will fall into the academic, and public newspapers and magazines.These are commercial secrets.lead to the establishment of commercial secrets is not the reason. If the defendant is a public advocate, commercial secrets of the plaintiff known technology,must prove that the burden of proof necessary for the plaintiff can also search technology.Known to prove its commercial secrets is not technical. The burden of proof is relatively easy for security measures.the main legal issue in deciding whether or not constitute reasonable security measures. For example, the contracts contain confidentiality clauses.confidentiality regulations and systems. on value, not too much relevance, if enterprises use,and to its economic benefitscan prove their points. require plaintiffs in the trial court must be pointed out commercial secrets? how to determine the point of commercial secrets secret? If it is related to the technical nature of information technology.This is a very professional, the court will appoint a special identification organs are often identified commercial secrets.Of course, conclusions can be finalized only evidence. If the plaintiff is unable to identify or not identify the secret point is often lost one of the major reasons. In addition,The plaintiff must provide evidence that they have ownership of this business secret.If his license transfer and the development of the document. (2) prove that the accused carried out the anti - unfair competition law against violations of the commercial secrets of their trade secrets.Local access is not disclosed.use or permit the use of commercial secrets of the plaintiff. infringement of business secrets be summed up in three simple types :improper access, disclosure of misconduct, improper use of the property of these three types of violations are independent of each other, if there is no disclosure,not used only improper acquisition, as well as infringement. access to legitimate people,outside the scope of the use or disclosure of a breach of confidentiality, as well as infringement of the same. Therefore, in specific cases,When the plaintiff can prove that the use of its trade secrets,There is no need to prove that the "engagement similar"? We think that he is using the proven,This is used without permission from the plaintiff, it is likely that he is wrong. and the defendant whether there is a legitimate source of authority.should the burden of proof from the defendant to prove themselves, and not the plaintiff,without permission from the plaintiff to prove the defendant on the use of its trade secrets, there was the basic cause of theThe plaintiff can sue.the burden this has been completed. The remaining defendant, the burden of proof should be on its legal sources. (3) the defendant's violation caused damage to the plaintiff or the defendant obtained illegal profits of tort damages is the most widely held civilly liable for the infringement.One of the most basic ways. civil rights are being infringed upon the basic principle of compensation is compensation for actual losses,also known as the "gap principle." However, the plaintiff and the defendant agreed amount of loss could not confirm the cases,fixed the method can be used to determine the amount of damages. compensation can be fixed in the range between 5,000 to 300,000 yuan.specific amount, the people's court for violation of intellectual property rights in accordance with the type of assessed value, duration of the infringement.Rights violations have been due to factors such as damage to the reputation of the fixed rate to determine compensation. "Anti-Unfair Competition Law" Article 20 clearly states that "operators who violate this law.violation of the damage caused to the operator, should be held liable for compensatory damages.against the operators was difficult to calculate the losses, which was a result of the infringement during the infringement violations in the profits.and shall be borne by the operators of the investigation against the operators against their legitimate rights and interests of the reasonable costs incurred by improper competition."The unfair competition law as a violation of trade secrets act,Therefore, the provision clearly applies to the calculation of compensation for infringement of commercial secrets. The provisions of this article is to follow the civil law tradition established by the actual principle of compensationgeneral principles applicable to the actual compensation for the damages calculation of tangible property is reasonable and practicable.intangible assets applicable in the calculation of damages.some deficiencies. But at the moment there are many courts continue to apply such a "gap" principle,mainly to compensate. plaintiff to avoid ", may seek restitution of the benefits" of the situation, the burden of proof,the court should pay attention to the following aspects : 1 Trial Practice plaintiff's actual loss is difficult.The plaintiff was often unable to provide the court with sufficient evidence to prove their losses. violations were often not very low profits or are only trying to escape.reduce the liability of the defendant time to investigate violations during the profit is very difficult. Therefore,If violations can only be proof of the loss or profits can be found in the infringement judgment.it may not be sufficient to protect the legitimate rights and interests of the plaintiff.and should not be accused of violations of the sanctions. In other words,infringer in tort legislation to the profit as a result of the infringement during the amount of compensationis actually a relief to the plaintiff,However, the infringement of the plaintiff's profits may not be sufficient compensation for actual losses. 2.commercial secrets intangible property such a notable feature is its unique,This feature determines its potential economic benefits and competitive advantages. Therefore, the calculation of the actual property damage only,neglect of the performance of non-property damage was unreasonable. talking about here in the form of non-property damage, including damage to the potential economic benefits.lost the dominant position in the market competition, commercial reputation,commercial reputation of the damage. These non-property damage often than actual property damage. For example :produced by the plaintiff and the defendant, the same products of inferior quality.claiming that their products and in marketing technology products is the plaintiff in the same technological level,then it is bound to undermine the credibility of the plaintiff's business. Under such circumstances,no amount of compensation for damages plus some commercial reputation of the plaintiff apparently is not enough to make up for losses.
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