CHINA – BEIJING Trends and Developments Contributed by: Ye Zhao, Zhanjiang Zhang and Qiang Ma, Jingtian & Gongcheng
Expansion in the Scope of Trade Secret Protection Broader recognition of protectable subject matter Traditionally, China’s recognition of protectable trade secrets has been relatively conservative. However, recent SPC decisions have significant - ly broadened this scope. Several judicial decisions have recently signifi - cantly broadened the scope of trade secret pro - tection in China. Several landmark cases merit particular attention, as outlined below. In the “Wannuo 2000” hybrid corn case (2022 SPC IP Division No 147), the SPC recognised the parent lines of new plant varieties as pro - tectable trade secrets. Traditionally, parent lines were viewed strictly as carriers rather than trade secrets. However, the SPC held for the first time that when the carrier and the underlying trade secret are practically inseparable, the carrier itself may qualify for protection as a trade secret. In the E-commerce Mini Program source code infringement case (2021 SPC IP Division No 2298), the SPC explicitly affirmed that software source code could constitute a trade secret. The SPC clarified that even if different develop - ers create distinct source codes to achieve the same functionality, each code version may still independently qualify for trade secret protection. This ruling notably expands the potential scope of protection afforded to software-related trade secrets. In the Oil Data compilation case (2022 SPC IP Division No 901), the SPC determined that an organised compilation of publicly accessible data can constitute a trade secret. The Court reasoned that even though individual data points may be publicly available, the complete
database – provided it remains confidential and inaccessible as a whole – can enjoy trade secret protection. These landmark rulings collectively expand the categories of information eligible for trade secret protection, significantly enhancing judicial pro - tection in practice. Guided by these SPC prec - edents, lower courts have proactively explored extending protection to categories previously unrecognised as trade secrets. For instance, in the Smart Retrieval Algorithm case (2021 Shen - zhen IP No 3843), the Shenzhen Intermediate People’s Court protected algorithms as trade secrets for the first time. Similarly, in the Shiitake Polysaccharide case (2019 Nanjing IP No 3444), the Nanjing Intermediate Intermediate People’s Court recognised traditional Chinese medicine formulations as trade secrets. Relaxation in the standards of reasonable protective measures In general, the adequacy of confidentiality meas - ures must correspond appropriately to the trade secrets being protected. This correspondence is typically evaluated based on factors such as the nature of the trade secrets and their carriers, the commercial value of the secrets, the identifi - ability of confidentiality measures, the extent to which the measures align specifically with the trade secrets, and the rights holder’s intent to maintain secrecy. In other words, the burden of proof for plaintiffs is relatively high. However, recent judicial decisions have dem - onstrated increased flexibility by relaxing the standards for evaluating confidentiality meas - ures in certain contexts. In the Hybrid Corn Case, the SPC explicitly recognised the practi - cal difficulties inherent in maintaining absolute secrecy for breeding materials, which require exposure to soil, water, air, sunlight, and regular
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