CHINA Law and Practice Contributed by: Chuanhong Long, Ji Liu and Xiao Jin, CCPIT Patent and Trademark Law Office
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 evidence preservation, it mainly considers the following factors: • the plaintiff should clearly claim the specific content of the trade secret and attach rel - evant evidence; • the plaintiff should provide prima facie evi - dence 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 plaintiff. Evidence that the plaintiff can obtain by themselves 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 evi- dence preservation mechanism can be applied, the plaintiff should have prima facie evidence of the defendant’s infringement. The plaintiff should complete the acquisition of prima facie evidence by themselves and cannot rely on oth - er mechanisms. After the prima facie evidence is presented, on the one hand, the plaintiff can obtain further evidence through the court’s evi - dence 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 investi - gative capabilities, the plaintiff can also obtain evidence through this channel for civil proceed - ings.
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 stipu - lated in Articles 100 and 101 of the Civil Pro - cedure Law; if so, the applicant can require the court to make a conduct preservation ruling – ie, an injunction to order the defendant not to dis - close, use or allow others to use the trade secret allegedly stolen from the applicant. Since trade secret cases are not heard in public, if the court conducts evidence preservation, the process will not be made public, and the trade secrets involved and their carriers will not be disclosed to third parties. 5.9 Defending Against Allegations of Misappropriation Common defences in trade secret cases include the following: • Defence against trade secrets: (a) the scope of the trade secret is unclear or its carrier is not specified; (b) the secret point is unclear or incorrect; (c) the trade secret was known to the public before the defendant obtained or used it; and (d) the owner or the licensee of the trade secret involved did not take the corre - sponding confidentiality measures for the trade secret. • Independent research or reverse engineering defence: (a) where the allegedly infringing information is obtained through independent research or reverse engineering, the people’s court
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