CHINA Law and Practice Contributed by: Chuanhong Long, Ji Liu and Xiao Jin, CCPIT Patent and Trademark Law Office
appraisal of whether the alleged “secret point” (ie, an individual secret element of a project) is known to the public, and whether the informa - tion in question is the same as the secret point information. Forensic appraisal can be unilater - ally entrusted by the plaintiff or the defendant, In terms of territorial jurisdiction, the court of jurisdiction for cases of infringement of trade secrets may be the court at the place where the infringement is committed (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 domiciled. In terms of level jurisdiction, first-instance civil cas - es involving trade secret infringement are gener - ally under the jurisdiction of intermediate peo - ple’s courts, according to judicial interpretations. Provincial high people’s courts may designate certain basic-level people’s courts to hear cases involving unfair competition 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 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 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 practice is to reduce the difficulty of proof for plaintiffs and appropriately reallocate the burden of proof. For or may be entrusted by the court. 5.4 Jurisdiction of the Courts
example, according to Article 32 of the new Anti- Unfair Competition Law, in the civil trial proce - dure concerning 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 pro - vides prima facie evidence reasonably showing that the trade secret has been infringed, and provides one of the following 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 sub - stantially 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 defendant 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 evidence when the evidence may be lost or dif - ficult to obtain in the future. Plaintiffs in trade secret infringement cases often take advantage of this provision of the Civil Procedure Law to file an application for evidence preservation while
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