CHINA Law and Practice Contributed by: Chuanhong Long, Ji Liu and Xiao Jin, CCPIT Patent and Trademark Law Office
to prove the existence of infringement. However, due to the difficulty of obtaining evidence in trade secret cases, the current trend in legal and judicial prac - tice is to reduce the difficulty of proof for plaintiffs and appropriately reallocate the burden of proof. For example, according to Article 39 of the new Anti-Unfair Competition Law, in the civil trial procedure concern - ing infringement of trade secrets, the owner of trade secrets shall provide prima facie evidence to prove that they have taken confidentiality measures for the claimed trade secrets and reasonably show that the trade secret has been infringed, while the accused infringer shall prove that the trade secret claimed by the right-holder does not constitute a trade secret as stipulated in this law. Where the right-holder of a trade secret provides pri - ma facie evidence reasonably showing that the trade secret has been infringed, and provides one of the fol - lowing as evidence, the accused infringer shall prove that they have not infringed the trade secret: • there is evidence that the accused infringer had channels or opportunities to obtain the trade secret, and the information used is substantially the same as the trade secret; • there is evidence that the trade secret has been or is at risk of being disclosed or used by the accused infringer; or • there is other evidence that the trade secret has been infringed by the accused infringer. These provisions reduce the difficulty of the plaintiff’s proof and reallocate the burden of proof to the defend - ant after the plaintiff provides prima facie evidence. 5.6 Seizure Mechanisms The Civil Procedure Law grants the parties a right to apply to the people’s court for preservation of evi - dence when the evidence may be lost or difficult to obtain in the future. Plaintiffs in trade secret infringe - ment cases often take advantage of this provision of the Civil Procedure Law to file an application for evidence preservation while suing, hoping to obtain direct evidence of the defendant’s infringement and relevant evidence of damage through the court. When the court examines the plaintiff’s application for evi -
dence preservation, it mainly considers the following factors: • the plaintiff should clearly claim the specific con - tent of the trade secret and attach relevant evi - dence; • the plaintiff should provide prima facie evidence of the defendant’s infringement; • the scope of evidence preservation should be consistent with the claim. Generally, the scope of preservation shall not exceed the trade secrets claimed by the plaintiff nor the claims of the plain - tiff. Evidence that the plaintiff can obtain by them - selves or secure through notarisation will not be preserved by the court; and • the guarantee provided by the plaintiff. 5.7 Obtaining Information and Evidence As mentioned in 5.5 Initial Pleading Standards and 5.6 Seizure Mechanisms , even if an evidence preser - vation mechanism can be applied, the plaintiff should have prima facie evidence of the defendant’s infringe - ment. The plaintiff should complete the acquisition of prima facie evidence by themselves and cannot rely on other mechanisms. After the prima facie evi - dence is presented, on the one hand, the plaintiff can obtain further evidence through the court’s evidence preservation mechanisms; on the other hand, if the defendant infringes trade secrets to a serious extent and is suspected of committing a crime, the plaintiff can also report this to the police. Because the police have strong investigative capabilities, the plaintiff can also obtain evidence through this channel for civil pro - ceedings. The evidence that the plaintiff can furnish includes evidence relating to infringement and damage. 5.8 Maintaining Secrecy While Litigating According to the relevant judicial interpretation, when the applicant believes that their trade secret is about to be illegally disclosed, it should be determined whether it is “urgent” as stipulated in Articles 100 and 101 of the Civil Procedure Law; if so, the applicant can require the court to make a conduct preservation ruling – ie, an injunction to order the defendant not to disclose, use or allow others to use the trade secret allegedly stolen from the applicant. Since trade secret
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