Reprinted several examples of online articles for reference:
(1) "Environmentally friendly biological pesticides" have successfully invested in technology
Published time: 2009- 11-18 10:53:36 Source: Keyi.com has been viewed 349 times
Core tip:
Green environmental protection is a major issue that everyone is concerned about in today’s society. Pollution-free vegetables , pollution-free food, etc. have become the basic guarantee for the majority of people to pursue health. In order to improve people's healthy life quality and expand health elements, Mr. Fang, a member of Keyi.com Technology Network, developed "environmentally friendly biopesticides". This technology is mainly used to produce pollution-free fruit tea, which can improve the quality of fruits and increase the use of agricultural products. The functions of value and economic value are of great significance to protecting the ecological environment.
In order to promote this technology across the country and realize its technical value, Mr. Fang applied for the Technology Pass membership of Keyi.com. After many times of publicity on the website, there are many demanders for this technical consultation. Just yesterday, Mr. Fang said that this technology has successfully found demanders for cooperation. In order to understand the specific cooperation situation of this technology, Keyi.com staff paid a return visit to Mr. Fang.
In the return visit, Mr. Fang said: The technology was successfully transferred in October 2009, and the transfer method was technology equity investment. Due to the agreement, it is inconvenient to disclose the specific details of this transfer. But the technology is now in the pilot stage, after which it can go into mass production.
In this regard, the staff of Keyi.com congratulated Mr. Fang on his success, and also hoped that the website membership technology could be transferred as soon as possible.
(2) Wuhan new regulations: the proportion of intellectual property intangible assets can reach 70%
Encourage enterprises to invest in shares with intellectual property intangible assets, and intellectual property intangible assets account for the registered capital The proportion can reach up to 70%. If the research and development expenses of enterprises and institutions form intangible assets, they can be amortized before tax at 150% of the intangible capital. Today (13th), reporters learned from the Wuhan Intellectual Property Office that the "Wuhan Municipal Provisions on Promoting Intellectual Property Work" (hereinafter referred to as the "Regulations") were announced by the Wuhan Municipal People's Government and will be officially implemented from February 1. This is It is the first initiative among sub-provincial cities in the country.
The "Regulations" issued this time include establishing and improving the overall coordination mechanism and policy system for intellectual property work, with 34 articles, fully absorbing the advanced experience of Shenzhen, Shanghai and other regions, some of which were only available in the past. Relevant policies that can only be enjoyed by coastal open cities can now be enjoyed by Wuhan.
The "Regulations" also pointed out that the Wuhan Municipal Government will set up special intellectual property awards such as invention patent awards, design awards, well-known trademark awards, and standard awards to encourage the creation and use of intellectual property rights. Individuals or units that counterfeit or seriously infringe intellectual property rights are not allowed to undertake government investment projects, participate in government procurement activities, participate in similar exhibitions in Wuhan within 3 years from the date of identification, and are not allowed to be given government rewards, subsidies or grants. Honorary title.
(3) Together with negative cases, it can also be proved that individuals obtain income through intellectual property rights, technology transfer or equity participation
(Of course, it is not appropriate to follow the example of obtaining other people’s trade secrets through infringement)< /p>
Xu Ji Company sued Mr. Zheng for compensation for infringement of trade secrets by using the technical secrets of the unit he mastered to buy shares in Aite Company to produce similar products
Plaintiff: Xu Ji Electric Co., Ltd. (hereinafter referred to as Xu Ji company).
Defendant: Mr. Zheng, 33 years old, chief engineer of Luohe Aite Electrical Equipment Co., Ltd.
Defendant: Luohe Aite Electrical Equipment Co., Ltd. (hereinafter referred to as Aite Company).
On December 10, 1984, the plaintiff Xu Ji Company signed a "Contract for Licensing Rights and Technical Secrets of Relay Protection Power Line Carrier Equipment" with Siemens of Germany, and transferred the contract to Siemens for more than 620,000 German marks. relay protection and carrier technology. According to the stipulations of the contract, the plaintiff sent defendant Zheng Xiansheng and other company personnel to Siemens for overseas training in carrier technology in May 1986. After the training, the plaintiff organized scientific researchers, including the defendant Mr. Zheng, to carry out the localization development of carrier technology. As one of the project leaders, Mr. Zheng participated in the development of the ESB-500 unilateral power line carrier.
In January 1992, the plaintiff's ESB-500 unilateral power line carrier technology passed the appraisal of the Ministry of Electrical and Mechanical Engineering and the Ministry of Energy and was put into production. Due to the significant benefits of the product, the plaintiff received an award from the Xuchang Municipal People's Government on September 6, 1995. The plaintiff has formulated confidentiality regulations for the above-mentioned transferred technology and the technical data, process data and design drawings of the developed products, and has not disclosed or transferred the technology and secrets involved to any unit or individual.
In addition to participating in the development of the ESB-500 unilateral power line carrier as one of the project leaders, the defendant Zheng Xiansheng also served as the project leader from February 1991 to April 1992. Engaged in the technical development of the plaintiff's YPC-500F6 remote protection signal audio transmitter project, and was responsible for the complete machine and principle design. On March 25, 1992, Student Zheng signed an 11-year "full labor contract" with the plaintiff, stipulating that Student Zheng should abide by national laws, regulations and various rules and regulations formulated by the unit. In October 1994, Mr. Zheng paid RMB 200,000 as shares for his power line carrier and remote protection signal audio transmitter technologies, and applied to establish the defendant Aite Company with Luohe Cigarette Factory, Zhang Mingliang and others, and was elected as a director. In Aite Company, except for Mr. Zheng, no one else has engaged in technical research on power line carriers and remote protection signal audio transmitters. Aite Company has also not conducted reverse engineering on these two products of Xu Ji Company. . In February 1995, Aite Company used the technology provided by Zheng to produce the SSB-2000 power line carrier. In May 1995, Mr. Zheng left Xu Ji Company to work at Aite Company without approval. In September 1995, in the company communication product quotation printed by Aite Company, the average price of SSB-2000 power line carrier machine was 45,700 yuan/unit. As of the time of the lawsuit, Aite Company had produced 11 units of this product, worth 502,700 yuan. Calculated with an average profit margin of 37.06%, the profit was 186,300 yuan. This product of Aite Company passed the inspection of the Power Line Carrier Quality Inspection Center of the Ministry of Electric Power Industry on July 28, 1996.
After Xu Ji Company discovered the products produced by Aite Company, it requested Aite Company and Mr. Zheng to stop the infringement but failed, and then filed a lawsuit with the Xuchang Intermediate People’s Court, saying: Mr. Zheng works in our company During this period, he mastered our company's power line carrier technology. However, during his tenure, he used the technology he mastered to buy shares, established Aite Company with others, and illegally used the technology for production. In May 1995, Mr. Zheng left his post without authorization, interrupting the production tasks for which he was responsible, causing our company a loss of 135,000 yuan. Aite Company knew clearly that Mr. Zheng was our company's direct participant in the development of power line carriers, but regardless of business ethics, it used the technology secrets illegally provided by Mr. Zheng to produce power line carriers using the inducement of technology investment, thereby infringing upon our company's rights Trade secrets. Request the court to order Mr. Zheng and Aite Company to stop infringement and unfair competition, and to order Mr. Zheng to compensate our company for the loss of 135,000 yuan caused by the unilateral termination of the labor contract. The two defendants shall be jointly and severally liable for compensation, and shall also be liable to our company. The business secrets shall be kept confidential.
The defendant, Student Zheng, did not respond.
The defendant Aite Company argued that the plaintiff’s lawsuit was untrue and that it did not infringe upon the plaintiff’s trade secrets.
During the trial proceedings, the Xuchang Intermediate People’s Court, in response to the plaintiff’s application for preservation, extracted a prototype of Aite Company and commissioned experts to conduct technical appraisal of the products produced by both parties. The conclusion was: Aite Compared with the SSB-2000 type power line carrier produced by the company and the ESB-500 single-sided power line carrier produced by the plaintiff company, there are as many as 15 similarities in mechanical structure, among which the important components are the IFC intermediate frequency sending plug-in and the IFR intermediate frequency. The IF filter of the receiving plug-in and the pilot display mode of the AGC pilot control plug-in are consistent. Aite's products use the proprietary technology of the plaintiff's products in its mechanical structure and some important components. The court also found that the plaintiff company spent 2,150 yuan in investigation fees and 25,000 yuan in lawyer consulting fees for this case.
The Xuchang Intermediate People’s Court held that: The plaintiff Xu Ji Company received the power line carrier production technology of Siemens of Germany through a paid technology transfer contract, and conducted localized development of the technology to produce ESB －500 type power line carrier product.
The plaintiff has not transferred or disclosed the product technology to third parties in any way, and has adopted a series of confidentiality measures, which have brought certain economic benefits to the plaintiff. The technology is the plaintiff’s trade secret and should be protected by law. Defendant Zheng Xuexue took advantage of his position to master this trade secret, violated the confidentiality regulations of the plaintiff company, used the technology as capital to invest in the establishment of Aite Company while working at the plaintiff's unit, and transferred the technology to the company for free use to produce products. conduct sales, which violated the provisions of Article 10 of the "Law of the People's Republic of China and the State Against Unfair Competition" and infringed upon the plaintiff's legitimate rights and interests. Defendant Aite Company clearly knew that the power line carrier technology was the plaintiff’s technical secret, but for commercial interests, it used technology pricing as a shareholding to induce defendant Zheng Students to take out the plaintiff’s technical secret and use the technology to produce products for sale, which is an unfair means. The act of obtaining the right holder’s trade secrets. Plaintiff Xu Ji Company's request for the defendant to cease infringement and compensate for losses should be supported. The plaintiff's request to order the defendant Zheng Xuesheng to cause losses to the plaintiff due to the unilateral termination of the labor contract falls within the scope of labor disputes and should be handled in a separate case. According to Article 118 of the General Principles of the People's Republic of China and the Civil Law of the People's Republic of China, Article 10 and Article 20, Paragraph 1 of the Anti-Unfair Competition Law of the People's Republic of China, the Court decided The judgment was made on June 12, 1997:
1. Defendants Zheng Xiansheng and Aite Company shall immediately cease infringement from the date of the judgment and shall not use the plaintiff’s power line carrier technology for production and business activities, and shall impose The plaintiff's technical secrets that are known to him shall bear the obligation to keep them confidential.
The second and second defendants jointly and severally compensated the plaintiff for economic losses of 213,450 yuan.
3. Reject the plaintiff’s other claims.
The defendant, Mr. Zheng, refused to accept the first-instance judgment and appealed to the Henan Provincial Higher People’s Court, saying: The Siemens technology purchased by Xu Ji’s company has long been widely known and cannot constitute a trade secret. Aite's products use three-time adjustment technology in principle, which is different from Xu Ji's products. My technical services and Aite Company's products have no causal relationship with Xu Ji Company's technical secrets, and I request a revision of the sentence. After student Zheng appealed, he submitted that Henan Fawei Law Firm commissioned four experts from Beijing in October 1997 to compare the SSB-2000 power line carrier of Aite Company with the ESB-500X single-sided power line carrier of Xu Ji Company. technical review comments. This opinion believes that power line carriers have now become specialized and serialized general-purpose products, and a corresponding monograph was published in 1992. Therefore, the products of various manufacturers on the market will have a certain degree of similarity. The main technical contents of SSB-2000 and ESB-500X electric power carrier machines are quite different, and they are products of different eras and different technical characteristics.
Xu Ji Company responded: Our company has successfully conducted domestic research on the imported technology, which has reached the internationally advanced level at that time. It is not known to the public and is practical. Our company has also taken necessary confidentiality measures. Measures, it is the trade secret of our company, and the right to use and transfer belongs to our company. Mr. Zheng is a technician of our company and participated in the development of this technology by taking advantage of various conditions provided by the company. He used this technology to buy shares in Aite Company and produce products for sale. How can we say that there is no causal relationship between the two. Request to dismiss the appeal and uphold the original judgment.
In addition to the above-mentioned facts found in the first instance, the Henan Provincial Higher People’s Court also found that Aite Company has produced 11 SSB-2000 electric power carrier machines and has sold 6 units with a sales price of 168,000 yuan. , a profit of 62,160 yuan. The "Company Profile" in its quotation states that its products are developed based on the extensive absorption of foreign advanced technologies (such as Siemens of Germany and ABB of Switzerland) and the specific requirements of the domestic power system. Relevant experts commissioned by the court of first instance also pointed out in their appraisal opinions on whether the products of Xuji Company and the products of Aite Company belong to the same technology that Xuji Company’s products embody the advanced technology of Siemens Company introduced by it, digesting and absorbing the domestically produced power lines. The unique style and proprietary technology of the carrier series products are different from any other type of power line carrier products in China, whether in terms of mechanical structure or electrical performance principles.
The basis for the Beijing expert review submitted by the appellant Zheng Xuesheng after the appeal mainly includes: ESB-500X single-sided power line carrier machine split wiring diagram instructions, SSB-2000 power line carrier technical instructions and SSB (SPC)-2000 carrier machine physical objects ; A complete set of drawings of the two products and the actual ESB-500X machine were not provided; the actual SSB (SPC)-2000 machine provided was not the product of Aite when the court of first instance ruled on preservation.
The Henan Provincial Higher People's Court held that: After Xu Ji Company received the power line carrier technology from Siemens of Germany, it developed and produced the ESB-500 product through localization, and passed the technical appraisal of the relevant departments. The performance It has reached the international advanced level of similar products, and its technical achievements are owned by Xu Ji Company. This technological achievement has brought certain economic benefits to Xu Ji Company, and the company has taken necessary confidentiality measures. It has not been transferred or disclosed by the company in any way. It is the company's business secret and is protected by law. Any other No one may use or transfer it without the permission of the company. The appellant was originally a technician of Xu Ji Company. He used the conditions provided by the company to master the principle and technology of the ESB-500 machine. The technology he mastered belonged to Xu Ji Company. Without the permission of Xu Ji Company, the appellant Not for use by individuals or other entities. During his tenure at Xu Ji Company, the appellant participated in the establishment of Aite Company, violated the confidentiality agreement with Xu Ji Company, and used the technology he mastered as a share price to produce the SSB-2000 electric power carrier machine for Aite Company. His behavior constituted disclosure and The use of Xu Ji Company's trade secrets has infringed upon Xu Ji Company's legitimate rights and interests, and should bear civil liability to stop the infringement and compensate for losses. Aite Company clearly knew that Mr. Zheng was an on-the-job technician who had mastered the technical secrets of Xu Ji Company. Without legal transfer, it used the technology as a shareholding to induce the appellant to use Xu Ji Company's technology to produce and sell products for it. Its behavior was unfair. The act of obtaining other people's trade secrets through fair competition shall bear the civil liability for infringement together with the appellant ***. The first trial was correct in ordering the appellant and Aite Company to cease infringement and compensate for losses. The appellant claimed that the technology transferred by Xu Ji Company was a well-known technology and was not its trade secret, and that its technology investment and Aite Company's products had no causal relationship with Xu Ji Company's technical secrets. The fact itself shows that the technology was not a publicly known technology at the time; Aite Company agreed to the appellant’s purchase of shares using this technology, which also shows that the technology was not a publicly known technology at this time; the appellant used Xu Ji Company’s technology in Aite Company’s products Production, there is an inevitable causal relationship between Aite Company's products and Xu Ji Company's technology, so the appellant's reason for appeal is not valid. As for the expert review opinion submitted by the appellant after the appeal, because the review opinion was based on incomplete information, there was no complete set of drawings comparing the two products, and there was no physical product of Xu Ji Company, and the Aite Company product provided was not the product during preservation. , therefore the review opinion lacks objectivity and comparability and will not be accepted. The first instance found that the profits gained by Aite Company from infringement and the losses suffered by Xuji Company were wrong and should be corrected. According to the provisions of Article 153, Paragraph 1, Item (3) of the Civil Procedure Law of the People's Republic of China, the court ruled on March 27, 1998:
1 , uphold the first and third items of the first-instance judgment, and revoke the second item.
2. The appellant and Aite Company shall jointly and severally compensate Xu Ji Company for economic losses of RMB 62,160, which shall be completed within 15 days after this judgment takes effect.
Commentary Analysis During the trial of this case, the two parties argued the most intensely and were the most critical basis for finalizing the case, mainly focusing on the following three aspects:
1. Power line carrier production technology Is it the plaintiff Xu Ji's company's trade secret? "Article 10, Paragraph 3 of the Law of the People's Republic of China on Anti-Unfair Competition" stipulates that a trade secret is one that is not known to the public and can bring economic benefits to the right holder. Technical information and business information that is practical and has been kept confidential by the right holder. Technical information includes design, procedures, product formulas, production processes, production methods and other information.
If this information becomes a trade secret, according to the above regulations, it must meet the following conditions: ① It is not known to the public, that is, the information cannot be obtained directly from public channels; ② It can bring economic benefits to the right holder and is practical, that is, The information has certain applicability and can bring actual or potential economic benefits or competitive advantages to the right holder; ③ The right holder has taken confidentiality measures for the information, including entering into a confidentiality agreement, establishing a confidentiality system and taking other reasonable measures Confidentiality Measures.
In this case, Xu Ji Company received Siemens’ power line carrier technology for a fee, which means that this technology is not a widely known technology; Xu Ji Company has made its products unique through digestion, absorption, and localized research and development. With unique style and proprietary technology, the product performance has reached the international advanced level of similar products. Whether it is mechanical structure or electrical performance principle, compared with any other type of domestic power line carrier products, this product has its unique process characteristics and Technical know-how, these have been fully affirmed in the product identification and litigation expert panel identification conclusions of the two national ministries, thus determining that the technical achievements have characteristics that are not known to the public.
After this technological achievement was put into production, the effect was remarkable and it was awarded by the local government in September 1995, indicating that it has economic benefits and practicality.
In terms of confidentiality measures, Xuji Company has formulated confidentiality regulations, which clearly stipulate the scope of technical confidentiality and confidentiality measures. In the "labor contracts" signed with employees, including Zheng students, confidentiality disciplines are also clarified. This all shows that Xu Ji Company has taken necessary confidentiality measures on its production technology achievements, including power line carrier machines. This technological achievement has not been transferred or disclosed in any way, and it is fully consistent with the characteristics of a trade secret. The first and second instance courts determined that this technological achievement is the trade secret of the plaintiff Xu Ji Company in accordance with the law, which is correct.
2. The question of whether the production technology of the SSB-2000 power line carrier of the defendant Aite Company is the same as the production technology of the ESB-500 power line carrier of the Xu Ji Company is related to the production technology of both the plaintiff and the defendant. Whether the same performance is determined will directly affect the determination of whether Xu Ji's trade secrets have been infringed.
Article 6 of the "Technology Contract Law of the People's Republic of China" stipulates: "Technical achievements that are performed to perform the tasks of the unit or are mainly completed using the material and technical conditions of the unit are job technical achievements. Job title The right to use and transfer technological achievements belongs to the unit. "Performing the tasks of the unit, including in-service personnel undertaking scientific research and technological development projects of the unit; performing the responsibilities of their positions; personnel who retire, retire, or are transferred to work shall not leave the original unit. During the year, continue to undertake the scientific research and technology development projects of the original unit or perform the responsibilities of the original position.
In this case, judging from the facts and evidence found in the first and second instances, the defendant Zheng’s position at the plaintiff Xu Ji Company was product development and research of “power line carrier communications and electronic system automation”, and he used Xu Ji Company’s Provided conditions and job conveniences, mastering ESB-500 machine technology. Judging from the time when it used this technology to purchase shares of the defendant Aite Company, the SSB-2000 power line carrier machine it developed was still in progress while working at Xu Ji Company. The development of the SSB-2000 power line carrier machine not only did not exceed its Job responsibilities, and it is the specific performance of their job responsibilities. Their behavior falls within the scope of "performing the tasks of the unit". If they have technical achievements, they should also be classified as job technical achievements and should belong to Xu Ji Company according to law. Moreover, during the course of the litigation, the court of first instance commissioned experts to conduct a comparative appraisal of the ESB-500 and SSB-2000 power line carriers, which showed that the products of Aite Company were basically equivalent to those of Xu Ji Company, and the plaintiff and defendant had superior production technology. Identity.
Therefore, the technical achievements of the power line carrier in this case should belong to Xu Ji Company according to law, whether from the perspective of trade secrets or job technical achievements. Based on this, the two levels of courts determined that the two defendants’ actions constituted infringement and it was correct to order them to bear corresponding civil liability.