CHINA Law and Practice Contributed by: Chuanhong Long, Ji Liu and Xiao Jin, CCPIT Patent and Trademark Law Office
6.2 Trial Process In China, there is no difference between the trial of trade secret cases and the trial of general civil cases, except that trade secret cases are usually not heard in public. The trial process generally includes stages such as evidence exchange and cross-examination, court investigation and court debate. Court investiga - tion and court debate are often carried out together. Except in a few cases, a witness who has given testi - mony shall appear and testify in court, otherwise their testimony cannot be used as the basis for independ - ent determination of facts. Generally, trade secret cases are the same as other civil cases: the second instance is final, and the trial period is six months for the first instance and three months for the second instance. The above periods may be extended. 6.3 Use of Expert Witnesses In trade secret cases, the plaintiff and the defend - ant may hire expert witness to give testimony on the technical issues for which they are responsible. An expert witness can provide answers to professional and technical questions and ask questions of the other party’s expert witness. However, in trade secret cases, it is more common to ask a professional judicial appraisal institution to issue an appraisal report, such as whether the alleged secret point is unknown to the public and whether the defendant’s information is the same as that of the trade secret. The appraisal expert shall appear in court. Although the cost of appraisals varies according to their contents, it is usually several hundred thousand yuan. 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, injunction to order the defendant not to disclose, use or allow others to use the trade secret allegedly stolen from the applicant. The preconditions for the preservation ruling include: 7. Remedies 7.1 Preliminary Injunctive Relief
• the trade secret claimed by the applicant meets the constitutive requirements; • the fact of infringement exists or is about to hap - pen; • irreparable damage will be caused if such an injunction is not granted; • a guarantee has been provided by the applicant according to law (see below); and • the injunction shall not harm the public interest. If the people’s court orders conduct preservation measures to be implemented, it shall reasonably determine the duration of those measures according to the request of the applicant, the specific circum - stances of the case and other factors. The effect of any ruling to stop the infringement of intellectual property rights is generally maintained until the judgment of the case takes effect. The amount of guarantee provided by the applicant shall be equivalent to the losses that the respondent may suffer from the implementation of the conduct preservation measures, including reasonable losses such as lost sales income and storage expenses of the products involved. In the process of implementing the conduct preserva - tion measures, if the losses that the respondent may suffer as a result exceed the guarantee provided by the applicant, the people’s court may order the appli - cant to increase the guarantee correspondingly. 7.2 Measures of Damages The amount of compensation for business operators that have suffered damage due to unfair competi - tion shall be determined according to the actual loss suffered due to the infringement. If the actual loss is difficult to calculate, the compensation shall be determined according to the profits obtained by the infringer due to the infringement. The amount of com - pensation shall also include the reasonable expenses spent by the operator to stop the infringement. In order to obtain the above compensation, the plain - tiff shall provide corresponding evidence. In order to determine the amount of compensation, the people’s court may order the infringer to provide the account
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