Measures for success in trade secret lawsuits

China has developed a comprehensive legal system composed of laws, regulations and judicial interpretations to protect trade secrets. Right holders may protect their interests through administrative complaints, civil actions or even criminal prosecution, but it is not easy to apply these laws in practice, mainly because trade secret infringement is highly concealed, and China has no evidence discovery system like that of the US, making it quite difficult for right holders to obtain evidence of infringement. However, if the right holders can make full use of existing coercive measures under China’s legal system, they may still achieve the desired results.

Application of evidence preservation. An evidence preservation system can help the plaintiff to obtain evidence required by the lawsuit with the power of the court. However, given the complexity of trade secret cases, Chinese courts are quite cautious about evidence preservation in such cases, and not all applications will be approved. According to the author’s experience, the following conditions often need to be met in order to successfully preserve the evidence:

1. There are clear and specific contents of the trade secret to be protected. The review conducted by the court mainly focuses on the content of the trade secrets. Two issues are particularly important: first, the contents and carriers of the secret should be distinguished; and second, the scope of the secret should be made clear.
2. The evidence to be preserved must not exceed the content and scope of the trade secrets.
3. The plaintiff has provided prima facie evidence of the defendant’s infringement. The judge will review the evidence and determine whether the prima facie evidence is sufficient. The criterion of probability and advantage evidence is often adopted at this stage.
4. The plaintiff is willing and able to provide certain forms of guarantee.
5. Evidence to be preserved should be the evidence that cannot be obtained by the plaintiff.

Sun Jinlin is a partner in the Shanghai office at Jincheng Tongda & Neal