Trade Secrets 2025

CHINA – BEIJING Trends and Developments Contributed by: Ye Zhao, Zhanjiang Zhang and Qiang Ma, Jingtian & Gongcheng

computer hard drives or physical documents, to be eligible for legal protection. However, the SPC has recently broadened this traditional requirement by recognising oral communications or records as valid carriers of technical trade secrets. In the landmark Banyi - tong case (2023) SPC IP Division No 593), the SPC explicitly acknowledged that certain trade secrets, by their very nature, might not always be documented in internal written records but rather reside exclusively in an individual’s mem - ory, demonstrated through practical technical operations or orally transmitted instructions (such as unique culinary techniques). The SPC has ruled that courts should avoid placing overly strict requirements on plaintiffs concerning the specific form of the trade secret’s carrier during litigation. The SPC emphasised that as long as plaintiffs can clearly establish the precise con - tent of the secret information and demonstrate its objective existence before the infringement occurred, the carrier does not need to be a phys - ical or original medium. This flexible approach significantly broadens the types of evidence that can be used to support trade secret claims. Expanding Liability Beyond Intent and Gross Negligence Traditionally, courts viewed trade secret infringe - ment as an intentional act or requiring gross neg - ligence. Joint infringement generally required intentional acts by all participants involved; negligence alone was usually considered insuf - ficient. Moreover, joint infringement typically requires clearly showing intentional collaboration or coordination among infringers. Recent SPC decisions have significantly reshaped these traditional interpretations.

In the E-commerce Mini Program Source Code Case, the SPC recognised for the first time that infringement could arise from negligent behav - iour. Further clarifying the standard in the land - mark Melamine case (2022) SPC IP Division No 541), the SPC delineated three distinct scenarios of joint infringement based on subjective intent: • acts jointly committed intentionally; • acts jointly committed negligently; and • acts involving a combination of intentional and negligent conduct. In the third scenario, joint infringement can still be established even if actors possess varying degrees of subjective fault, provided their com - bined conduct collectively causes harm. Moreover, the SPC held that joint intentional infringement does not require explicit prior con - spiracy or subsequent coordination. It is suf - ficient if multiple parties are mutually aware of each other’s acts and sequentially engage in coordinated behaviour to form a complete chain of infringement. Thus, parties who possess mutual awareness, share intent, and engage in complementary acts contributing to the infringe - ment are jointly liable for trade secret infringe - ment. Increased Compensatory Damages Historically, intellectual property damages awarded by Chinese courts have been relatively low compared to international standards, though recent trends indicate significant upward adjust - ments. According to third-party data, between 2012 and 2023, compensation amounts award - ed in invention patent infringement cases in China have notably increased, with median dam - ages rising from approximately USD14,280 to USD28,000, and average damages increasing from approximately USD31,000 to USD300,000.

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