Burden of proof in trade secret infringement suits

In China, trade secret infringement suits involve proof of at least two things: the plaintiff has a trade secret; and the defendant infringed that secret. However, to obtain substantial damages, presenting grounds for the claimed amount is also required. Regarding burden of proof, the basic principle in civil procedures in China is that whoever makes a claim is responsible for adducing evidence in support of it, and trade secret infringement suits are no exception. In such suits, the main burden of proof lies with the plaintiff, but, in the finding of certain facts, a switch in the burden of proof to the defendant will also be involved.

TRADE SECRETS

Trade secrets are a special form of intellectual property that exist through the protection of the rights holder itself, so in infringement suits the confirmation of trade secret rights is far more complex than that for patents. Substantiating that a trade secret has been established in accordance with the law is in fact proving that it satisfies the features of being secret, having commercial value and being confidential.

In the past, the question of who should assume the burden to prove the “secrecy” of a trade secret was one of the difficult issues. The Chinese courts held that the burden of proof should fall on the defendant, because “secrecy” is a negative fact and thus difficult to prove, whereas it was easier for the defendant to prove that the information in question was information in the public domain.

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