CHINA Law and Practice Contributed by: Chuanhong Long, Ji Liu and Xiao Jin, CCPIT Patent and Trademark Law Office
to use the trade secrets of the previous employer in the course of their work. At the same time, most impor - tantly, the new employer should preserve and archive relevant evidence, such as keeping all the materials proving that it obtained the trade secrets of others through lawful means, such as reverse engineering.
relevant provisions on the suspension and interruption of the limitation of action. 5.3 Initiating a Lawsuit As mentioned above, in China, there is no discovery in the civil procedure. Therefore, after collecting the evidence and finishing other preparations (see 5.1 Prerequisites to Filing a Lawsuit ), the plaintiff should file a lawsuit with the court. Generally, after accept - ing a case, the court will give both parties a time limit for producing evidence, and then organise evidence exchange and a pre-trial conference. Furthermore, the court will organise at least one formal trial before reaching a conclusion. Trade secret litigation cases also often involve forensic appraisal, such as appraisal of whether the alleged “secret point” (ie, an individual secret element of a project) is known to the public, and whether the information in question is the same as the secret point information. Forensic appraisal can be unilaterally entrusted by the plaintiff or the defendant, In terms of territorial jurisdiction, the court of jurisdic - tion for cases of infringement of trade secrets may be the court at the place where the infringement is com - mitted (including the place where the infringement is carried out and the result of the infringement occurs) or the court at the place where the defendant is domi - ciled. In terms of level jurisdiction, first-instance civil cases involving trade secret infringement are generally under the jurisdiction of intermediate people’s courts, according to judicial interpretations. Provincial high people’s courts may designate certain basic-level people’s courts to hear cases involving unfair com - petition in their jurisdictions, with the approval of the Supreme Court. Basic-level people’s courts that have already been approved to handle intellectual property civil cases can continue to do so. In addition, the level of jurisdiction is affected by the amount of damages claimed. For example, for cases with a damages claim amount exceeding CNY5 billion, the provincial high court has jurisdiction. 5.5 Initial Pleading Standards or may be entrusted by the court. 5.4 Jurisdiction of the Courts In China, civil cases follow the principle of “he who asserts must prove”. Therefore, for trade secret cases, the plaintiff is required to have conclusive evidence
5. Trade Secret Litigation 5.1 Prerequisites for Filing a Lawsuit
Since there is no discovery in the civil procedure in China, the plaintiff should collect evidence, including evidence of infringement and damage, before filing a lawsuit. To file a lawsuit for infringement of trade secrets, the following work should be done: • determining the parties of the lawsuit – ie, the plaintiff and the defendant; • determining the court of jurisdiction: territorial and level jurisdiction, distinguishing between technical and business information; • carrying out necessary preservation, including evidence and conduct preservation; • determining the scope of trade secrets; • determining the constituent elements of trade secrets, ie, not being known to the public, having commercial value and taking corresponding confi - dentiality measures; • identifying basic types and scope of infringement acts; and • determining the litigation claims and the type of civil liability, eg, stop the infringement, compensate for losses, return or destroy the trade secret carrier, remove the trade secret information in possession. 5.2 Limitations Period The statute of limitations does not apply to claims for cessation of the infringement of trade secrets; for claims for damages from infringement, the limitation period begins when the right-holder knows or should have known the scope of infringement, the infring - er and the infringing acts. In principle, the limitation period is three years, but shall not exceed 20 years from the date of infringement. At the same time, trade secret cases, like other civil cases, are subject to the
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