Trade secret protection under amended competition law

The amended Anti-Unfair Competition Law, officially adopted by the National People’s Congress standing committee on 4 November 2017, will be implemented as of 1 January 2018. Compared with the existing Anti-Unfair Competition Law, which has been implemented since 1993, the new law provides holders of trade secrets with more complete and specific protections, while imposing more rigorous sanctions on infringers.

Definition of trade secrets. Under the new law, “trade secret” is redefined as any technical or business information with commercial value that is not generally known to the public, and for which the holder has taken appropriate measures to maintain confidentiality. Under the existing law, “trade secret” was defined as any technical or business information that is not generally known to the public, but is practical and able to bring economic benefits to the holder, and for which the holder has taken appropriate measures to maintain confidentiality.

According to past judicial decisions and the related judicial interpretations of the Supreme People’s Court (SPC), the primary standards to determine a trade secret being “practical and able to bring economic benefits to the holder” include the actual or potential commercial value of relevant information, and whether it can bring a certain competitive advantage to the right holder.