[1] The meaning of "trade secret" under Article 2 subparagraph 2 of the Unfair Competition Prevention and Trade Secret Protection Act

[2] The case holding that the applicant company's technical information on the "new acid" constitutes a "trade secret" of the applicant company which manufactures the obsive acid smoke

[3] The case holding that it constitutes a trade secret infringement under Article 2 subparagraph 3 (a) of the Unfair Competition Prevention and Trade Secret Protection Act, where a person who was employed in the manufacturing company of Austria and retired from the company immediately after retirement constructed the same type of "new calcification path" using the trade secret of the company as to "new calcification path" known to him/her, and the production of calcification products using the trade secret of the company

[4] Whether the prohibition of permanent infringement of trade secrets is permitted (negative)

[5] The case holding that the provisional disposition prohibiting infringement of trade secrets is not unlawful in light of the fact that the creditor's right by provisional disposition is merely a provisional and provisional disposition prohibiting infringement of trade secrets

[1] Article 2 subparagraph 2 of the Unfair Competition Prevention and Trade Secret Protection Act / [2] Article 2 subparagraph 2 of the Unfair Competition Prevention and Trade Secret Protection Act / [3] Article 2 subparagraph 3 (a) of the Unfair Competition Prevention and Trade Secret Protection Act / [4] Article 10 of the Unfair Competition Prevention and Trade Secret Protection Act / [5] Article 10 of the Unfair Competition Prevention and Trade Secret Protection Act

[1] Supreme Court Decision 98Da45751 delivered on November 10, 1998, Supreme Court Decision 98Do4704 delivered on March 12, 1999 (Gong199Sang, 710) Supreme Court Decision 2002Da60610 Delivered on September 23, 2004 (Gong2004Ha, 1693) / [4] Supreme Court Decision 96Da16605 Delivered on December 23, 1996 (Gong197Sang, 501) Supreme Court Decision 97Da24528 delivered on February 13, 1998 (Gong198Sang, 715)

Respondent Limited Corporation (Law Firm Digital Ballast, Attorney Kim Jae-won, Counsel for defendant-appellant)

Applicant Co., Ltd. (Law Firm Barun, Attorneys Seo-ro et al., Counsel for the plaintiff-appellant)

Seoul High Court Order 2007Ra376 dated July 4, 2008

The reappeal shall be dismissed. The costs of reappeal shall be borne by the respondent.

The grounds of reappeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Whether the manufacturing technology of the new marization of the instant case constitutes a trade secret

The term "trade secret" under Article 2 subparagraph 2 of the Unfair Competition Prevention and Trade Secret Protection Act means a method of production, sale, and other technical or managerial information useful for business activities, which is not known to the public and has an independent economic value, and whose secrecy is maintained by considerable effort. The term "patent information is not known to the public" means information that cannot be ordinarily obtained from a holder because it is not known to many and unspecified persons, such as the fact that such information is realizing the media of publications, etc. (see Supreme Court Decision 2002Da60610, Sept. 23, 2004).

The court below made it clear that the technical information about the new type of dustrialization of this case has economic value as one of the most important business factors, and that the applicant has invested and developed human and physical facilities for a long time and conducted research and development as well as the applicant has managed it as confidential. Thus, in light of the records, the court below's fact-finding and decision of the court below are just and there are no errors in the rules of evidence or in the misapprehension of legal principles. Thus, the court below's re-appeal to the purport that the technical information about the new type of dustrialization of this case is not protected as a trade secret is just and there is no errors in the rules of evidence or in the misapprehension of legal principles.

2. Whether the respondent has infringed trade secrets;

The court below held that the applicant company's non-applicant company's non-applicant company's duty to maintain confidentiality of the new type of acid for a considerable period of time after the withdrawal of the applicant company, such as taking a pledge as to the observance of the trade secret, but the respondent employed the non-applicant immediately after withdrawal and used the applicant's trade secret on the new type of acid, which he knows, to build two new type of acids such as the new type of acids of this case (hereinafter referred to as the "violations") at the respondent's factory in China by using the applicant's trade secret on the new type of the new type of acids of this case, and to allow the Respondent to produce the products by using it, constitutes an act of acquiring and using the applicant's trade secret by improper means, and constitutes an act of infringing the applicant's trade secret under Article 2 subparagraph 3 (a) of the Unfair Competition Prevention Act. In light of the records, the court below's fact-finding and judgment can be deemed legitimate, and there

3. A problem, etc. of excessive provisional disposition.

A. The court below maintained the first instance court's decision which accepted the provisional disposition order of this case, which cited the provisional disposition order of this case against the respondent, on the grounds that the respondent's production of the products of obsive acids using the infringed acid and the possibility of exporting them to and selling them to the Republic of Korea is likely to infringe on the applicant's business interest due to the above infringement of trade secrets.

In light of the records, despite the Respondent's assertion that the Respondent has installed and operated a separate conventional acid after the decision of provisional disposition of this case and a new type of acid which has been developed independently after the decision of provisional disposition of this case, the Respondent still can be deemed to have been operating the infringing mountain path in the factory located in this China. In light of the situation that it is difficult to practically distinguish the lead produced from the infringed mountain path in this case and the lead produced from other acids in the above factory in this case, the court below's decision that the above export and marketing prevention order has to be inevitable to the whole of the leadic acid produced in the above factory located in China, and there is no error of law such as omission of judgment or misapprehension of legal principles as argued in the grounds for re-appeal.

B. The purpose of prohibiting infringement of trade secrets is to prevent an infringing person from taking advantage of the superior position of "heat" or "time-saving" over fair competitors by such act of infringement, and to enable the holder of trade secrets to return the trade secrets to the original location without such infringement. Thus, the prohibition of infringement of trade secrets shall be limited to the time necessary for the infringing person to acquire the trade secrets by a lawful method such as independent development or reverse design, taking into account the rapid development of technology within the necessary time limit and the personal and material facilities of the infringing person during the pleading to the extent that it is necessary to achieve this objective, and the prohibition of infringement of trade secrets shall be limited to the time necessary for the infringing person or other fair competitors to obtain the trade secrets by the same legal method as independent development or reverse design, and it shall not be permitted because it is limited to the public interest and common interest that encourage free competition and enable employees to display their knowledge and ability (see, e.g., Supreme Court Decisions 96Da160538, Dec. 23, 1996; 205Da39897, Apr. 298.

However, in light of the fact that the creditor's right by provisional disposition is not a final but a provisional and provisional disposition, unlike the principal claim, and that provisional disposition should be made promptly in its nature, and that there is a change in circumstances such as extinguishment of the right to preserve the trade secret, it cannot be deemed unlawful on the ground that the provisional disposition prohibiting infringement of the trade secret did not specify the period of prohibition, unless there are special circumstances. This part of the grounds for appeal cannot be accepted.

4. According to the reasoning of the order of the court below, the court below's determination that the respondent still seems to have operated the infringed mountain path in the Chinese factory by taking account of the evidence that he adopted, and it is clear that the respondent's assertion that the Respondent is currently producing the obscination by using only a new form of obscination, and therefore, there is no reason to assert the omission of judgment in this part.

5. Conclusion

Therefore, the reappeal is dismissed as without merit, and the costs of reappeal are assessed against the respondent. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)