The Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Cases involving Infringement of Trade Secrets, which were adopted by the 1810th Session of the Judicial Committee of the Supreme People's Court on August 24, 2020, are hereby promulgated and shall come into force as of September 12, 2020.

Supreme People's Court

The law governing the trial of civil cases involving infringement of trade secrets

Provisions on several issues

(Judicial Committee of the Supreme People's Court, August 24, 2020)

Adopted at the 1810th meeting, effective as of 12 September 2020)

For the purpose of correctly hearing civil cases of infringement of trade secrets, these provisions are formulated in accordance with relevant laws and regulations such as the Law of the People's Republic of China against Unfair Competition, the Civil Procedure Law of the People's Republic of China and the actual trial conditions.

Article 1 The people's court may determine that the structure, raw materials, components, formulations, materials, samples, patterns, materials for the propagation of new varieties of plants, processes, methods or their steps, algorithms, data, computer programs and related documents and other information related to technology constitute the technical information referred to in paragraph 4 of Article 9 of the Anti-Unfair Competition Law.

The people's court may determine that the creative, management, sales, financial, planning, samples, bidding materials, customer information, data and other information related to business activities constitute the business information referred to in paragraph 4 of Article 9 of the Anti-Unfair Competition Law.

The customer information mentioned in the preceding paragraph includes the customer's name, address, contact information, trading habits, intention, content and other information.

Article 2 Where a party claims that a particular customer is a trade secret only on the grounds of maintaining a long-term and stable trading relationship with a particular customer, the people's court shall not support it.

If the customer conducts a transaction with the employer of the employee based on the customer's trust in the employee, and after the employee leaves office, it can be proved that the customer voluntarily chooses to conduct a transaction with the employee or the new employer of the employee, the people's court shall determine that the employee did not use improper means to obtain the business secrets of the right holder.

Article 3 Where the information requested by the right holder for protection is not widely known and easily available to the relevant personnel in the field at the time of the alleged infringement, the people's court shall determine that it is not known to the public as mentioned in paragraph 4 of Article 9 of the Anti-Unfair Competition Law.

Article 4 Under any of the following circumstances, the people's court may determine that the relevant information is known to the public:

(1) The information is general knowledge or industry practice in the field to which it belongs;

(b) the information only involves the size, structure, materials, simple combination of components and other contents of the product, and relevant personnel in the field can be directly obtained by observing the listed product;

(3) The information has been publicly disclosed in public publications or other media;

(4) the information has been made public through public reports, exhibitions, etc.;

(5) The relevant personnel in the field can obtain the information from other public channels.

If the new information formed after sorting, improving and processing the information known to the public conforms to the provisions of Article 3 of these provisions, it shall be deemed that the new information is not known to the public.

Article 5 The reasonable confidentiality measures taken by the right holder to prevent the disclosure of trade secrets before the occurrence of the alleged infringement shall be identified by the people's court as the corresponding confidentiality measures referred to in paragraph 4 of Article 9 of the Anti-Unfair Competition Law.

The people's court shall, based on the nature of the trade secret and its carrier, the commercial value of the trade secret, the recognizability of the confidentiality measure, the correspondence between the confidentiality measure and the trade secret, and the confidentiality intention of the right holder, determine whether the right holder has taken the corresponding confidentiality measure.

Article 6 Under any of the following circumstances, which under normal circumstances is sufficient to prevent the disclosure of trade secrets, the people's court shall determine that the right holder has taken appropriate confidentiality measures:

(1) Signing a confidentiality agreement or agreeing on confidentiality obligations in a contract;

(b) through the articles of association, training, rules and regulations, written notification and other means, to have access to, access to trade secrets of employees, former employees, suppliers, customers, visitors and other confidentiality requirements;

(3) restricting visitors or conducting separate management of confidential factory buildings, workshops and other production and business sites;

(4) Distinguishing and managing trade secrets and their carriers by marking, classifying, isolating, encrypting, sealing up, and limiting the scope of persons who can be accessed or obtained;

(5) taking measures such as prohibiting or restricting the use, access, storage or reproduction of computer equipment, electronic equipment, network equipment, storage equipment and software that can access or obtain trade secrets;

(6) requiring the resigned employee to register, return, remove or destroy the trade secret and its carrier that he or she has contacted or acquired, and to continue to assume the obligation of confidentiality;

(7) Taking other reasonable security measures.

Article 7 Where the information requested by the right holder for protection has actual or potential commercial value because it is not known to the public, the people's court may, upon examination, identify it as having commercial value as referred to in paragraph 4 of Article 9 of the Law against Unfair Competition.

If the phased results formed in the production and business activities conform to the provisions of the preceding paragraph, the people's court may, after examination, determine that the results have commercial value.

Article 8 Where the accused infringer obtains the trade secrets of the right holder in a manner contrary to the provisions of the law or generally recognized business ethics, the people's court shall determine that the trade secrets of the right holder are obtained by other improper means as mentioned in paragraph 1 of Article 9 of the Anti-Unfair Competition Law.

Article 9 Where the accused infringer directly uses the trade secret in production and business activities, or uses the trade secret after modification or improvement, or adjusts, optimizes or improves the relevant production and business activities according to the trade secret, the people's court shall identify the use of trade secrets as referred to in Article 9 of the Anti-Unfair Competition Law.

Article 10 The confidentiality obligation undertaken by a party in accordance with the provisions of the law or the contract shall be deemed by the people's court to be the confidentiality obligation referred to in paragraph 1 of Article 9 of the Anti-Unfair Competition Law.

If the parties do not agree on the confidentiality obligation in the contract, but according to the principle of good faith and the nature, purpose, contracting process and trading habits of the contract, the accused infringer knows or should know that the information it obtains belongs to the trade secret of the right holder, the people's court shall determine that the accused infringer bears the confidentiality obligation for the trade secret it obtains.

Article 11 The operation and management personnel of legal persons and unincorporated organizations and other personnel with labor relations may be identified by the people's court as employees or former employees referred to in paragraph 3 of Article 9 of the Anti-Unfair Competition Law.

Article 12 In determining whether employees or former employees have channels or opportunities to obtain the business secrets of the right holder, the people's court may consider the following factors related to them:

(1) positions, duties and powers of authority;

(2) the work undertaken or the tasks assigned by the unit;

(3) The specific circumstances of participating in production and business activities related to trade secrets;

(4) Whether to keep, use, store, copy, control or otherwise contact or obtain trade secrets and their carriers;

(5) Other factors that need to be considered.

Article 13 Where there is no substantial difference between the accused infringing information and the trade secret, the people's court may determine that the accused infringing information and the trade secret constitute substantially the same as stated in the second paragraph of Article 32 of the Anti-Unfair Competition Law.

In determining whether the substance referred to in the preceding paragraph is identical, the people's court may take into account the following factors:

(1) the degree of similarities and differences between the alleged infringing information and the trade secret;

(2) whether the relevant personnel in the field can easily think of the difference between the alleged infringing information and the trade secret when the alleged infringement occurs;

(3) whether there are substantial differences between the use, mode of use, purpose and effect of the accused infringing information and the trade secret;

(4) Information related to trade secrets in the public domain;

(5) Other factors that need to be considered.

Article 14 Where the accused infringing information is obtained through self-development or reverse engineering, the people's court shall determine that it does not belong to the infringement of trade secrets as provided for in Article 9 of the Anti-Unfair Competition Law.

The term "reverse engineering" as mentioned in the preceding paragraph refers to the technical information about a product obtained from open channels through technical means such as disassembly, surveying and mapping, analysis, etc.

If the accused infringer, after obtaining the trade secret of the right holder by improper means, claims not to infringe the trade secret on the grounds of reverse engineering, the people's court will not support it.

Article 15 Where the respondent attempts or has already obtained, disclosed, used or allowed others to use the trade secret claimed by the right holder by improper means, and fails to take action preservation measures that will make the judgment difficult to enforce or cause other damage to the party concerned, or will cause irreparable damage to the legitimate rights and interests of the right holder, The people's court may order the adoption of behavioral preservation measures in accordance with law.

If the circumstances specified in the preceding paragraph fall under the emergency mentioned in Articles 100 and 101 of the Civil Procedure Law, the people's court shall make a ruling within 48 hours.

Article 16 Where any natural person, legal person or unincorporated organization other than a business operator infringes on a trade secret and the right holder claims civil liability to be borne by the infringer in accordance with Article 17 of the Anti-Unfair Competition Law, the people's court shall support it.

Article 17 When a people's court adjudicates civil liability for stopping the infringement of a trade secret, the period of stopping the infringement shall generally last until the trade secret has become known to the public.

If the time limit for stopping the infringement is obviously unreasonable in accordance with the preceding paragraph, the people's court may, in the case of protecting the right holder's competitive advantage of the trade secret according to law, order the infringer to stop using the trade secret within a certain period or scope.

Article 18 Where the right holder requests a judgment to return or destroy the carrier of the trade secret and remove the trade secret information under his control, the people's court shall generally support it.

Article 19 Where a trade secret becomes known to the public as a result of an infringement, the people's court may take into account the commercial value of the trade secret when determining the amount of compensation according to law.

In determining the commercial value referred to in the preceding paragraph, the people's court shall take into account such factors as the cost of research and development, the income from the implementation of the trade secret, the benefits available, and the time for maintaining a competitive advantage.

Article 20 Where the right holder requests that the actual loss suffered by the infringement be determined by reference to the trade secret licensing fee, the people's court may determine the actual loss on the basis of the nature, content and actual performance of the license, as well as the nature, circumstances and consequences of the infringing act.

In determining the amount of compensation in accordance with paragraph 4 of Article 17 of the Anti-Unfair Competition Law, the people's court may take into account the nature of the trade secret, its commercial value, the cost of research and development, the degree of innovation, the competitive advantage it can bring, the subjective fault of the infringer, the nature, circumstances and consequences of the infringing act, and other factors.

Article 21 Where a party or an outsider applies in writing to a people's court to take confidentiality measures for the evidence or materials involving trade secrets of a party or an outsider, the people's court shall take necessary confidentiality measures in litigation activities such as preservation, evidence exchange, cross-examination, entrusted identification, inquiry, and trial.

Whoever, in violation of the confidentiality measures mentioned in the preceding paragraph, discloses trade secrets without authorization or uses or allows others to use the trade secrets obtained or contacted in litigation activities, shall bear civil liability according to law. If the case constitutes a circumstance as provided for in Article 111 of the Civil Procedure Law, the people's court may take compulsory measures according to law. If the case constitutes a crime, criminal responsibility shall be investigated according to law.

Article 22 When trying a civil case of infringement of trade secrets, the people's court shall, in accordance with the legal procedures, examine comprehensively and objectively the evidence formed in the criminal proceedings for the crime of infringement of trade secrets.

Where the parties to a civil case of infringement of trade secrets and their agents AD liem cannot collect the evidence related to the accused infringement by themselves due to objective reasons and apply for investigation and collection, the people's court shall grant permission, except where it may affect the ongoing criminal proceedings.

Article 23 Where a party claims to determine the amount of compensation for a civil case involving the same act of infringement of trade secrets on the basis of the actual loss or illegal gains recognized in an effective criminal judgment, the people's court shall support it.

Article 24 Where the right holder has provided preliminary evidence of the interests obtained by the infringer as a result of the infringement, but the account books and materials related to the infringement of trade secrets are in the possession of the infringer, the people's court may, upon the application of the right holder, order the infringer to provide the account books and materials. If the infringer refuses to provide such information without justifiable reasons or provides such information falsely, the people's court may determine the interests obtained by the infringer due to the infringement on the basis of the claims and evidence provided by the right holder.

Article 25 Where a party requests to suspend the trial of a civil case of infringement of trade secrets on the ground that the criminal case involving the same accused act of infringement of trade secrets has not been concluded, the people's court, after hearing the opinions of the parties, considers that the trial result of the criminal case must be the basis, shall support it.

Article 26 Where a licensee of a license contract for the exclusive use of a trade secret brings a lawsuit against an act of infringement of a trade secret, the people's court shall accept it according to law.

Where the licensee of an exclusive use license contract and the right holder jointly bring a lawsuit, or bring a lawsuit on their own without the right holder bringing a lawsuit, the people's court shall accept the lawsuit according to law.

Where the licensee of a general use license contract and the right holder jointly file a lawsuit, or file a lawsuit separately authorized by the right holder in writing, the people's court shall accept the lawsuit according to law.

Article 27 The right holder shall make clear the specific content of the trade secret claimed before the end of the debate in the court of first instance. If only one part can be specified, the people's court shall try the specified part.

If the obligee in the procedure of second instance separately claims the specific content of the trade secret which was not clear in the first instance, the people's court of second instance may, on the principle of the parties' willingness, conduct mediation on the litigation request related to the specific content of the trade secret; If mediation fails, the party concerned shall be informed to bring a suit separately. If both parties agree to be tried by the people's court of second instance together, the people's court of second instance may make a decision together.

Article 28 In trying civil cases of infringement of trade secrets, the people's court shall apply the law in place at the time of the alleged infringement. Where the alleged infringement has occurred before the amendment of the law and continues until after the amendment of the law, the amended law shall apply.

Article 29 These provisions shall come into force on September 12, 2020. If the relevant judicial interpretations previously issued by the Supreme People's Court are inconsistent with these Provisions, these Provisions shall prevail.

After the implementation of these Provisions, these Provisions shall apply to the first and second instance cases being tried by the people's courts; These Provisions shall not apply to cases where an effective judgment has been made before the implementation.