The company's translation resignation took away the core technology of â€œold clubâ€; when encountering difficulties in the counterfeiting process, it called the â€œold clubâ€ parts supplier in the name of order, took product information, and even ordered the same parts directly... ...the department that Wansuo Company ordered from other manufacturers...
The company's translation resignation took away the core technology of â€œold clubâ€; when encountering difficulties in the counterfeiting process, it called the â€œold ownerâ€ parts supplier in the name of order, took product information, and even ordered the same parts directly.... ..
Some of the equipment that Wansuo ordered from other manufacturers for assembling diamond wire saw production equipmentAt 2 pm on April 13, 2016, Zhao Xun and his assistant of Jiangning District, Nanjing City, Jiangsu Province, came to the conference room of Broco Diamond Wire Saw Co., Ltd. (hereinafter referred to as â€œBokoâ€). This time, he came not to investigate forensics, but to have another purpose.
In March 2016, the Jiangning District Procuratorate received a proposal from the District Political Consultative Conference Committee and General Manager of the Brocade Company, Yu Guang, â€œProposal to Increase the Protection of Original Intellectual Property Rights of Innovative Enterprisesâ€. In order to better understand the judicial protection needs of innovative enterprises, Zhao Xun and others specially went to listen to opinions. Yu Guang put forward specific suggestions on increasing the protection of intellectual property rights of enterprises, setting up a special case for intellectual property rights and a green channel for corporate intellectual property cases. While listening to it, Zhao Xun carefully recorded it and said that he must formulate specific research measures, handle the professional handling of intellectual property cases involving enterprises, prioritize and speed up the handling, reduce the burden of corporate litigation, and protect the development of enterprises.
Parting, general manager Yu Guang held Zhao Xunâ€™s hand tightly: â€œI am very grateful to the procuratorate for its concern and support for the company. Before the companyâ€™s accident, thanks to your case, the loss can be recovered...â€
Things have to start from the new translation of the Brocade company, Xin Miao.
See the machine stealing
One afternoon in May 2011, Duan Xinmiao took the resignation and stepped into Yu Guangâ€™s office with a secret excitement and a little uneasiness.
Duan Xinmiao, 80, Japanese professional high school student, Japanese translation of Brocade. In peacetime, in addition to serving as a company translator, Duan Xinmiao is also an assistant to the Japanese expert Kimura who is employed by the company to provide personal services to Kimura. Every day after work, he has to send Kimura to his home before he can go home. Sometimes, on weekends, you should accompany Kimura to go out and play.
After a long time, Duan Xinmiao gradually became guilty of the job he was engaged in. Serving Kimura every day, private time is too little to say, the company's salary is also low, for Duan Xinmiao, who is preparing to get married and desperately need a ticket, the current job has gradually lost his appeal. In the heart of Duan Xinmiao, he has been reluctant to resign and start his own company.
Brocade sells diamond wire saws as its main business, and its diamond wire saws have certain advantages in the market competition due to their unique technology. The company has adopted very strict confidentiality measures for the technology. In addition to issuing confidential manuals to employees, in the production process, many key information is only available to General Manager Yu Guang, Japanese expert Kimura and his translator, Xin Miao.
In April 2011, the production equipment was officially commissioned. Duan Xinmiao, who was involved in equipment design and production, became greedy at the time: Since I have mastered these drawings and data, why not use these to open a company?
Only technology, but no money, he thought of several of his friends, and immediately contacted them to discuss cooperation matters. At the beginning, several friends were not willing to participate because they did not understand the business in this area and knew that Duan Xinmiao had no technical background. Duan Xinmiao repeatedly lobbied and introduced them to the prospects of the project and persuaded them to believe that the technology in their hands could make a lot of money. Finally, Duan Xinmiao won the investment.
In mid-May, Duan Xinmiao partnered with others to form Nanjing Wansuo Material Technology Co., Ltd. (hereinafter referred to as â€œWan Mosuo Companyâ€) in the form of technology shareholding, and acquired 40% of the company's shares and served as general manager. Immediately, he resigned from Brocade's translation position. A few months before leaving the company, he was prepared to secretly copy the information and the photographs of the equipment he had taken to his laptop.
After the establishment of Wansuo Company, Duan Xinmiao completely blackened the manufacturer's logo and equipment name on the stolen data, and ordered parts with these drawings. Some drawings cannot be used directly for production, he finds skilled workers and converts them into usable CAD machining drawings.
Not only that, but he also known as Deng, as an engineer, personally went to the parts production plant to guide production. After the ordered parts and equipment arrived, he couldn't wait to assemble it. However, after debugging, he found that the equipment could not be used.
Anxiously, Duan Xinmiao thought of an idea. He picked up the phone, called the Brocade parts supplier, pretended to order the product, took the Brocade information from the other party's mouth, and even ordered the same parts directly from Brocade.
According to the information obtained, Duan Xinmiao made some adjustments to his own products and successfully made diamond wire saw production equipment capable of producing qualified products.
After taste the sweetness, Duan Xinmiao re-edited the existing equipment and changed the equipment that could produce 4 lines at a time to 10 lines. In June 2011, Wansuo Company successfully sold a diamond wire saw production equipment for more than 2.8 million yuan. In September of the same year, another one was sold at a price of more than 2.6 million yuan. At the end of the year, Wansuo Company once again signed a sales contract for five equipments with a total price of 17.5 million yuan.
In January 2012, Duan Xinmiao got his first dividend at the Wansuo Company, totaling 200,000 yuan.
After the diamond wire saw production equipment produced by Wansuo Company entered the market, the price of diamond wire saws fell rapidly, which had a huge impact on the Brocade company, which mainly sold diamond wire saws. Brocade, which found that the market was rapidly losing and the product was abnormally reduced, reported the case to the public security organ.
Going to Beijing for identification
Duan Xinmiao was quickly captured. In March 2013, the case was transferred to the Jiangning District Procuratorate for review and prosecution. A difficult problem lies in the case of Zhao Xun, the prosecutor of the case: Brocade's technology involves many disciplines such as electroplating, materials, and machinery. It is difficult to find a suitable appraiser to identify it. At the same time, the ownership of the trade secret also has doubts. Duan Xinmiao argues that Brocade's technology is in the patent disclosure period in Japan and does not constitute a trade secret.
When the case was handled, the defender put forward an opinion that the ownership of the trade secret in the case could not be ascertained, and in the calculation of profit, only the dividend of 200,000 yuan that Duan Xinmiao could get was determined. The prosecution believes that although the ownership of trade secrets in this case has not yet been determined, the objective behavior of Duan Xinmiao does infringe on trade secrets; since the profit of Wansuo Company is obtained through the technology of infringing trade secrets, Whether or not it is assigned to Duan Xinmiao, it should be recognized.
Afterwards, Duan Xinmiaoâ€™s attorney submitted an appraisal from a technical appraisal agency in Beijing to the procuratorate, arguing that the technology held by Brocade is not a trade secret. The material and size of one of the core components are common knowledge in the industry. And its parameters will not affect the actual production after a certain range of changes, it is the data that can be obtained after a small amount of experiment.
In the face of this situation, Zhao Xun made a difficult. In order to confirm whether Brocade's technology is really not a trade secret as the appraisal agency said, he decided to go to Brocade for a field trip. In the production workshop of Brocade, he listened to the general introduction of the diamond wire saw production equipment by the general manager of the company, Yu Guang, and observed the diamond wire saw produced under several different sizes of parts with a microscope. In contrast, he found that the diamond distribution on the wire saw produced by the parameters of Brocade was even and reasonable, and after a slight modification of the parameters, the diamond saw was unevenly distributed on the wire saw, and the quality of the two was very different. .
After an intuitive understanding and understanding of Brocade's technology, Zhao Xun had some confidence in handling the case. In order to further understand whether Brocade's technology is a trade secret, he immediately rushed to Beijing to find another qualified unit and entrusted them with professional appraisal of Brocade's technology.
On the 3rd day in Beijing, he visited six experts from two appraisal organizations and had an in-depth conversation with Brocade on the technology, while trying to persuade several experts to testify in court. The latter expert group of the appraisal structure made an appraisal conclusion on the premise of examining the physical object: through scientific and technological retrieval, Brocade's diamond wire saw equipment drawings are technical information that is not known to the public. The parameters of the core components require a lot of manpower and resources to be experimentally obtained. From the experiment to the small-scale trial production to the mass production, each link takes at least three months. "Boko's technology belongs to the industry's leading level. The structure of the core system has not seen precedents at home and abroad. It took a long time and effort to study, and it is impossible to disclose it to the outside world." The experts unanimously reached a conclusion.
In fact, Duan Xinmiao signed a confidentiality agreement with the workers after the establishment of the Wansuo Company, and adopted certain confidentiality measures for this technology. This proves that he is well aware of the non-known nature of the technology.
After the identification of the business secrets was solved, another problem emerged: how to calculate the significant losses caused by the new business of stealing trade secrets to Brocade?
"There are three calculation modes for the losses caused by infringement of trade secrets. First, the loss caused by the trade secret rights holders is the first calculation mode. Secondly, the benefit obtained by the infringer due to the infringement is the second calculation mode. Again, The license fee for trade secrets is used as a supplementary calculation model. The second method should be adopted in this case." Zhao Xun said. The first method determines the loss of the right holder based on the decrease in the sales volume of the right holder due to the infringement, but the causal relationship between the two is difficult to prove. The specific amount of the product sales reduction is more difficult to identify. Therefore, the infringer The benefits of infringement often become the most important way to identify major losses.
In this case, the loss caused by Brocade's behavior due to Duan Xinmiao is difficult to calculate directly, and the infringement profit can be regarded as the loss of Brocade. The benefits that Wansuo Company obtained all came from the technology stolen by Duan Xinmiao, and all of them should be recognized as illegal profits of 10.92 million yuan. According to the second paragraph of Article 7 of the Interpretation on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Infringement of Intellectual Property Rights, if the amount of loss to the right holder of a trade secret is more than 2.5 million yuan, it is stipulated in Article 219 of the Criminal Law. "causes particularly serious consequences."
At the beginning of the court session, the defense lawyers clung to the identification of the trade secrets and their ownership issues, trying to confuse the Japanese drawings. After a year of full preparation, the prosecutor was in the chest and arguing against the evidence he presented. The two sides invited two experts from the Beijing identification structure to appear in court to testify. At the first instance, the court held two trials, and the first trial lasted for two full days.
In the end, the court adopted the opinion of the prosecution. Duan Xinmiao was sentenced to six years in prison for committing infringement of commercial secrets and fined RMB 2 million. Duan Xinmiao refused to accept and appealed. The Nanjing Intermediate People's Court finally maintained the original judgment in the second instance.
â€œIt took 25 months before and after the case.â€ Prosecutor Zhao Xun lamented, â€œThe process is very difficult, but it also provides us with good experience and ideas for handling similar cases in the future.â€
(Wenzhong Boko Diamond Wire Saw Co., Ltd., General Manager Yu Guang, Japanese expert Kimura are all pseudonyms)
After the case
Trade secrets are the magic weapon for the competition in the enterprise market, which hides huge economic interests, which makes it the object of many criminals. However, the national average annual conviction of infringement of trade secrets does not exceed 100. Trade secret cases span the two fields of technology and law. In theory, the understanding is not uniform, and it is difficult to obtain evidence in practice. It has always been the bottleneck restricting the smooth handling of cases.
Different from patents, which are publicly exchanged for state authorization protection, trade secrets are self-protection that is not open, which leads people to be unclear about the ownership and scope of trade secrets. The case must first be based on "secret, managerial, practical". Three characteristics to determine whether a technology can constitute a trade secret. To solve this problem, it is necessary not only for the judiciary to have professional case handlers, but also for enterprises to have a complete business secret protection plan before the incident, and also need to obtain a large amount of infringement evidence, especially relying on professional technical appraisal.
Another difficulty is the choice of loss identification method. There is no uniform regulation in legislation. In practice, it is necessary to find appropriate identification methods for different infringements and loss results, and this method must be reasonable and supported by relevant evidence. At the same time, the processing results of trade secret cases often affect the future market competition pattern of the enterprise. The process must be tested by all parties. The case handlers must be tempted and prepared to deal with various potential problems.
In the handling of this case, the judicial organs dare to take responsibility, face up to problems, overcome difficulties, and through the appraisal of the authoritative institutions and the appearance of appraisers, it is a good solution to the problem of whether the technology involved is a trade secret, and through careful and meticulous comparison of various loss identification methods. In combination with the case, the appropriate loss identification method was selected. Successful handling of the case not only protects intellectual property rights, but also motivates enterprises to innovate and maintain a fair market competition order.
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