[1] The purpose of prohibiting infringement of trade secrets and the method of determining the prohibition period

[2] In a case where a worker seeks a prior injunction against infringement of trade secrets as a precautionary measure to prevent infringement of trade secrets, whether the period of prohibition against infringement of trade secrets can be calculated on the basis of the time when the worker actually left the business handling the trade secrets (affirmative), and whether the same applies to a case where the worker seeks a injunction against infringement of trade secrets after his/her retirement (affirmative)

[1] Article 10 of the Unfair Competition Prevention and Trade Secret Protection Act / [2] Article 10 of the Unfair Competition Prevention and Trade Secret Protection Act, Article 300 of the Civil Execution Act

[1] Supreme Court Decision 97Da24528 delivered on February 13, 1998 (Gong1998Sang, 715) / [2] Supreme Court Order 2002Ma4380 Delivered on July 16, 2003 (Gong2003Ha, 1809)

Mete Co., Ltd. (Attorney Gu Tae-tae, Counsel for defendant-appellant)

D. D.O. Research Institute and two others (Law Firm Bupyeongan, Attorneys Kim Jong-hoon et al., Counsel for the plaintiff-appellant)

Seoul High Court Order 2015Ra700 dated October 18, 2016

All reappeals are dismissed. Expenses incurred in reappeals are borne by creditors.

The grounds of reappeal are examined.

1. As to the first ground for reappeal

A. Prohibition of infringement of trade secrets is to prevent an infringer from taking unfair advantage of the position superior to that of fair competitors or time saving by the act of infringement, and to enable a person holding trade secrets to return the trade secrets to the original position without such infringement. Thus, prohibition of infringement of trade secrets should be limited to time to the extent necessary to ensure fair and free competition and to achieve the purpose of protecting human trust relationship. In determining the scope, the scope of infringement of trade secrets should be reasonably compared to the contents and difficulty of the trade secrets, the period and expenses required to obtain technological information by the holder of trade secrets, the period and expenses required to maintain the trade secrets, the effort and method to endeavor to maintain the trade secrets, the time necessary for the infringer or other fair competitors to obtain such technical information by a lawful method such as independent development or reverse design, if the infringer is an employee (including retirement), the period of duty or position in which the infringer worked in relation to the employer, the degree of access to the trade secrets, regulations or agreements on trade secrets, the freedom of livelihood and occupation of the former employee, and the duration of patent rights, etc.

In addition, in imposing the duty to refrain from infringement of trade secrets, trade secrets shall be assessed on the basis of trade secrets acquired by an employee who handles trade secrets. Since Article 10 of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter "the Unfair Competition Prevention Act") provides that an employee may take measures to prohibit or prevent infringement of trade secrets, as a precautionary measure to prevent infringement of trade secrets is likely to be taken because the employee did not retire from his/her company but is preparing for his/her transfer, etc., the period of prohibition of infringement of trade secrets may be calculated as at the time of actually leaving the business in which the employee handled the trade secrets and the employee may seek prohibition of infringement of trade secrets while the trade secrets continue to exist. Thus, even if an employee seeks prohibition of infringement of trade secrets after his/her retirement, it is reasonable to calculate the period of prohibition of infringement of trade secrets as at the time of leaving the business in which the employee handled the trade secrets (see, e.g., Supreme Court Order 2002Ma4380, Jul. 16, 2003).

B. According to the reasoning of the order of the court below, it is reasonable to view that the period for prohibiting the infringement of trade secrets of each of the files of this case was six months or two years from August 5, 201, when the obligor 3 who leaked each of the files of this case from the creditor company's research and development work of the third source Capital program. Thus, even though the file of this case constitutes trade secrets under Article 2 subparagraph 2 of the Unfair Competition Prevention Act, and the debtor's act constitutes trade secrets under Article 2 subparagraph 2 of the Unfair Competition Prevention Act, even if the debtor's act constitutes trade secrets, the period for prohibiting the infringement of trade secrets of each of the files of this case has already expired as of the date of the decision of the court of first instance. Thus, the re-appellant's application of this case maintained the decision of the court of first instance that dismissed the application of provisional disposition

C. Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s determination is justifiable, and contrary to what is alleged in the grounds of re-appeal, there were no errors by misapprehending the legal doctrine regarding the time limit or the starting point of

2. As to the second ground for reappeal

A. According to the reasoning of the order of the court below, the court below rejected the re-appellant's assertion that the application for provisional disposition of this case should be accepted regardless of whether or not the period of prohibition of infringement of trade secrets has expired, on the grounds that the prohibition of infringement of trade secrets should be recognized only within the time limit necessary to achieve this purpose, and if the prohibition is permanently prohibited, it would be in the nature of sanction, and that it would not be appropriate for employees to promote free competition and display their knowledge and ability, as long as the application for provisional disposition of this case seeking prohibition of infringement of trade secrets prior to the expiration of the extinctive prescription was filed.

B. Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s determination is justifiable, and contrary to what is alleged in the grounds of re-appeal, there were no errors by misapprehending the legal doctrine on Article 14

3. Conclusion

All reappeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)