Introduction

General Secretary Xi profoundly pointed out that “Innovation is the primary driving force for development, and protecting intellectual property rights means protecting innovation.” Trade secrets are precious intellectual property and innovation achievements of enterprises, directly relating to enterprises’ survival and development. Protecting trade secrets means protecting enterprises’ core competitiveness, which is of significant importance for stimulating innovation vitality, optimizing the business environment, and promoting high-quality development.

In recent years, trade secret protection has become an important topic globally. With rapid economic globalization and technological innovation, trade secrets play an increasingly prominent role in international competition.

I. Reflections Arising from Two Cases

Recently, the author noticed the following two cases:

In the Supreme Court’s (2011) Min Jian Zi No. 414 ruling, the court held that “Yidege Ink” and “Zhonghua Ink” were listed as Beijing municipal state secret technology pending review projects in November 1995, and in May 1996 were listed as Beijing municipal state secret technology projects, with indefinite confidentiality duration.

In a (2011) Zi Min San Chu Zi No. 1 case, regarding whether the plaintiff’s technical process for quartz ceramic crucibles for photovoltaic polycrystalline silicon ingot casting constituted a technical secret, the court held that the technical process was recognized as a classified state secret technology, therefore could be determined as “not known to the public.”

Thus, when courts determine that technical secrets simultaneously receive protection as state secrets, this can directly serve as evidence for recognizing that the information “is not known to the public.”

II. Differences Between State Secrets and Trade Secrets

Based on the above cases, differences and connections between state secrets and trade secrets warrant exploration; clarifying their relationship is of significant importance for maintaining national interests and protecting market subjects’ economic interests.

Article 9, Paragraph 3 of the Anti-Unfair Competition Law defines trade secrets as “commercial information such as technical information and business information that is not known to the public, has commercial value, and for which the rights holder has taken corresponding confidentiality measures.”

Article 2 of the State Secrets Law defines state secrets as “matters whose national security and interests are involved, which are determined through legal procedures, and which are known only to a limited range of persons within a certain time period.”

Key Differences:

1. Different Subject and Procedure: State secrets require strict review and determination by confidentiality administrative departments according to legal regulations. Trade secrets follow voluntary principles requiring rights holders’ confidentiality awareness and objective reasonable confidentiality measures.

2. Different Circulability: Trade secrets can generally enter the market for transfer, use, and other activities without restriction. State secrets are closely related to national security and interests, with their transfer subject to strict national examination and control.

3. Different Protection Models: Trade secret protection encourages enterprise technology development, with the core being maintaining benefits rights holders can obtain from holding trade secrets. State secret protection focuses on preventing harm to national security and interests from disclosure, with higher-intensity criminal law deterrence.

4. Different Confidentiality Periods: State secrets have confidentiality periods; confidential level not exceeding 30 years for top secret, 20 years for secret, and 10 years for confidential, with flexibility for specific periods. Trade secrets have no such yearly limits if they satisfy constitutive requirements.

5. Different Management Requirements: Trade secrets are mostly regulated by enterprise regulations and agreements; state secrets must comply with state confidentiality regulations.

III. Feasibility of Technical Secrets as State Secrets Protection

Technical information in trade secrets and “science and technology secrets among state secrets” have overlapping information scope, with the same information potentially simultaneously satisfying both trade secret and state secret constitutive requirements. For such situations, Article 9 of the Science and Technology Confidentiality Provisions provides legal basis and identification standards for recognizing science and technology information in trade secrets as state secrets.

When trade secret rights holders discover their held trade secrets relate to national security and interests, they may make initial screening and judgment according to the State Secrets Law and Science and Technology Confidentiality Provisions. For trade secrets basically conforming to state secret scope and conditions, rights holders should proactively declare to confidentiality administrative departments or science and technology administrative departments for examination and determination by national relevant departments.

Article 15 of the Science and Technology Confidentiality Provisions clearly provides that when organizations and individuals generate science and technology matters requiring determination as state science and technology secrets, if the holder is an organization or unit without authority to independently designate secrecy, confidentiality measures shall be adopted and then submitted to organizations with corresponding designation authority or other competent departments for designation. This provides a legal foundation for the declaration and identification of trade secrets as state secrets.

IV. Conclusion

Existing legal provisions provide a legal foundation for technical secrets to be recognized as state secrets through declaration and identification. However, specific procedures are not yet clear, and practical application may have uncertainties. Additionally, after identification, changes in rights and obligations, especially restrictions on the use, income, and disposal of technical secrets after being identified as state secrets, may weaken the circulability of technical secrets and possibly reduce rights holders’ commercial opportunities, which is another topic requiring consideration.

In summary, specific procedures for identifying technical secrets as state secrets and comprehensive impacts after identification still require further exploration.