The age of knowledge-based economy industry is coming. The advantages in competition among enterprises lie in the differences of their intangible assets. The old laws on intelligent property right have been failed to keep pace with the advancement of science and technology, rapid circulation of information as well as development of economy. Hence, the range of intelligent property tends to be extended gradually. Among the newly emerged laws on intelligent property right, the Trade Secret Law has the greatest influence on the industrial circles. Since the promulgation of the law, it has brought about new impacts on the existing labor-administration relationship. The Trade Secret Law of the Republic of China, with reference to the legislation of the United States and our Patent Law, was promulgated by the President on January 17, 1996 after they were passed in the third reading in the legislative session of the Legislative Yuan. The Law consists of only 16 articles, including the definition of trade secret; ownership, transfer and authorization of trade secret, obligations of confidentiality of trade secret, infringement of trade secret, relief for infringement, civil responsibilities for infringement of trade secrete, range of claim for damages, etc. All of those regulations are just made in principle, especially, they are not detailed enough to explain the ownership of property right.
According to the existing Trade Secret Law, the trade secret is divided into technical information and business information. The definition of the technical information is more explicit, while the definition of business information is ambiguous. For instance, whether the strategic resources of a company such as list of customers, report of failed experiments, marketing and pricing policies, ideas of advertisements, secret of salary, etc. can be regarded as trade secrets or not? There are little practical examples related to trade secrets in Taiwan or foreign countries, so it still waits for the accumulation of legal precedents and supplements of the court to form a common and clear-cut awareness.
Besides, the trade secrets are classified into three major types based on the reason of their occurrence: employment, engagement and share. The trade secret accomplished by employees can be further divided into trade secrets researched or developed in or out of the performance of their duties. The clarification of definition of duty related or non-duty related trade secrete, the core of the Trade Secret Law, shall have great concern with the ownership of the property right. But, the standard and concepts for distinguishing the duty related trade secret from the non-duty related trade secret are lacking. For this reason, I discusses in this paper if the strategic information of a company can be deemed as a trade secret based on the definition of trade secret by clarifying the concepts of duty related or non-duty related trade secrets. I also took examples from literatures and raised 12 questions for the purpose of study to start a series of discussion on a whole.
In experimental study, the interviews of business owners and enterprise operators coming from engineers of basic level, researchers, lawyers and former officials of Ministry of Justice, and people engaged in information technology, traditional industries, logistic industry, and service industry, government employees, as well as people of all walks of life were conducted in order to collect information. After completion of the interviews, I made a comment from a professional angle and then made induction and arrangement of those collected information.
From induction of the experimental study, the conclusion and suggestions I obtained give a new explanation on some problems: If the strategic information can be regarded as a trade secret? The clarification of duty and non-duty related trade secret, standards for payment of reasonable remunerations, reasonable time limit on transfer and authorization for use, etc. This study is a little different from the discussion in the past literatures. I hope that the results of this study will be helpful to the interpretation of relevant laws and regulations or any judgement to be passed by the court or any amendment of laws in the future.
Keywords: (1) Trade secret; (2) duty; (3) non-duty