CHINA – BEIJING Trends and Developments Contributed by: Ye Zhao, Zhanjiang Zhang and Qiang Ma, Jingtian & Gongcheng
field management. The Court determined that the adequacy of confidentiality measures should be evaluated based on the specific characteris - tics of the materials that need protection. There - fore, confidentiality measures are deemed suf - ficient if they effectively prevent disclosure under typical circumstances, even if they do not ensure complete secrecy. Establishing confidentiality systems, signing confidentiality agreements, restricting external dissemination, and using code names for propagation materials may all constitute reasonable protective actions under appropriate circumstances. Less stringent requirement of secrecy The requirement that a trade secret must not be publicly known (ie, secrecy) generally means that the information is neither widely known nor eas- ily accessible to persons skilled in the relevant field. Article 4 of China’s judicial interpretation enumerates several scenarios in which informa - tion is considered publicly known. Recent court decisions have further relaxed the evidentiary standards for proving secrecy, build - ing upon existing statutory provisions and judi - cial interpretations. In the landmark Optimised Saw case (2019 SPC IP Division No 7), the SPC held that even when a product enters the market, certain internal mechanisms could still qualify as trade secrets if they do not constitute simple technical combina - tions readily discoverable by direct observation. Specifically, if discerning these mechanisms requires specialised software, electronic hard - ware, mechanical structures, and substantial experimentation by skilled personnel, the infor - mation remains protectable as a trade secret. Furthermore, the SPC clarified that making observations with prior knowledge of a trade secret does not simply count as basic obser -
vation. This ruling addresses a longstanding issue: right holders often face difficulties proving infringement because concealed components are hard to document, while visible components are usually publicly accessible. In the Chunfeng Power case (2022 SPC IP Divi - sion No 2501), the SPC explicitly distinguished the standards for trade secret secrecy from patentability criteria of novelty and inventive - ness. The Court highlighted that just because a technology lacks novelty or inventiveness com - pared to the prior art as of its patent application date (or priority date), it does not necessarily mean that the technical information was widely known or easily accessible at the time of the alleged infringement. Additionally, in the Cover Furnace Lifting Device case (2022 SPC IP Division No 719), the SPC stated that plaintiffs should not be subjected to excessively strict standards when distinguishing their claimed trade secrets from publicly known information. It is sufficient for plaintiffs to initially present preliminary evidence or a reasonable explanation supporting the non-public nature of the information. Once this preliminary showing is established, the burden shifts to the defend- ant to demonstrate that the contested technical information is publicly known. Easing the Evidentiary Burden for Right- Holders In addition to easing plaintiffs’ substantive evi - dentiary challenges, the Supreme People’s Court has further reduced plaintiffs’ overall bur - den of proof through a series of landmark cases. These judicial decisions have effectively lowered procedural hurdles, creating more favourable conditions for plaintiffs to prevail in trade secret litigation.
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