Click：232Document Number: Interpretation No. 7 [2020] of the Supreme People's Court
Area of Law: Civil Procedure Law
Level of Authority: Judicial Interpretation
Date Issued: 09-10-2020
Effective Date: 09-12-2020
Issuing Authority: Supreme People's Court
Status: Effective
A people's court may determine the information on creativity, management, sale, finance, plans, samples, bidding materials, clients' information and data, among others, relating to business activities as business information set forth in paragraph 4, Article 9 of the Anti-Unfair Competition Law.
For the purpose of the preceding paragraph, “clients' information” includes a client's name, address, contact information, and trading practices, intention, content, and other information.
Article 2 Where a party claims that a specific client falls under a trade secret only on the ground that the party maintains long-term stable trading relationships with the client, the people's court shall not support the claim.
Where a client, based on the trust in an individual employee, conducts transactions with the entity to which the employee belongs, if the employee, after leaving his or her office, is able to prove that the client voluntarily chooses to conduct transactions with him or her or his or her new employer, the people's court shall determine that the employee has not obtained the trade secret of the right holder by improper means.
Article 3 Where any information requested for protection by a right holder is not generally known and easily accessible by relevant personnel in the relevant field when an alleged infringement occurs, the people's court shall determine that the information is not known by the public as provided for in paragraph 4, Article 9 of the Anti-Unfair Competition Law.
Article 4 Under any of the following circumstances, a people's court may determine that the relevant information is known by the public:
(1) The information falls under common sense or industry practices in the field to which it belongs.
(2) The information only involves such contents as the product size, structure, materials, and simple combination of components, which may be directly obtained by relevant personnel in the field to which the party belongs through the observation of products on the market.
(3) The information has been disclosed to the public in any open publication or any other media.
(4) The information has been disclosed to the public through public seminars, exhibitions, and other methods.
(5) The information may be obtained by relevant personnel in the field to which the party belongs through other public channels.
New information formed after reviewing, improving or processing the information known by the public shall be deemed as not known by the public, if such new information complies with Article 3 of these Provisions.
Article 5 The people's court shall determine the reasonable confidentiality measures taken by a right holder to prevent the leakage of a trade secret prior to the occurrence of any alleged infringement as the corresponding confidentiality measures set forth in paragraph 4, Article 9 of the Anti-Unfair Competition Law.
A people's court shall determine whether a right holder has taken corresponding confidentiality measures based on such factors as the nature of the trade secret and its carrier, the commercial value of the trade secret, identification degree of confidentiality measures, degree of correspondence between confidentiality measures and the trade secret, and the right holder's willingness to keep the trade secret confidential.
Article 6 Under any of the following circumstances, if it is sufficient to prevent the leakage of a trade secret under normal circumstances, a people's court shall determine that the right holder has taken corresponding confidentiality measures:
(1) A confidentiality agreement has been signed or confidentiality obligations have been agreed upon in the contract.
(2) Confidentiality requirements are raised to employees, former employees, suppliers, clients, and visitors, who are able to access and obtain trade secrets in such forms as bylaws, training, rules and regulations, and written notification.
(3) Visitors' access to factory premises, workshops and other production or distribution premises involving the trade secret is restricted or such premises are differentiated for separate management.
(4) Trade secrets and their carriers are differentiated for separate management by such methods as marking, classification, isolation, encryption, sealing-up, limiting the scope of persons who are able to access or obtain the trade secrets and their carriers.
(5) Measures are taken to prohibit or restrict the use of, access to, storage in or reproduction from computer equipment, electronic equipment, network equipment, storage equipment, and software that can access or obtain trade secrets.
(6) Employees leaving their office are required to register, return, clear and destroy the trade secrets accessed or obtained by them and their carriers, and continue to assume the confidentiality obligation.
(7) Taking other reasonable confidentiality measures.
Article 7 Where any information for which protection is requested by a right holder has realistic or potential commercial value as it is not known by the public, the people's court may, upon examination, determine that the information has commercial value as provided for in paragraph 4, Article 9 of the Anti-Unfair Competition Law.
Where any periodic achievement formed in production and distribution activities complies with the provisions of the preceding paragraph, the people's court may determine upon examination that the achievement has commercial value.
Article 8 Where an alleged infringer obtains a right holder's trade secret in a manner that violates legal provisions or recognized business ethics, the people's court shall determine that the alleged infringer has obtained the trade secret of the right holder by other improper means as set forth in paragraph 1, Article 9 of the Anti-Unfair Competition Law.
Article 9 Where an alleged infringer directly uses any trade secret in its production and distribution activities, or uses any trade secret after the modification or improvement thereof, or adjusts, optimizes or improves relevant production and distribution activities based on any trade secret, the people's court shall determine that the alleged infringer has used the trade secret as set forth in Article 9 of the Anti-Unfair Competition Law.
Article 10 The people's court shall determine the confidentiality obligation assumed by a party in accordance with legal provisions or the confidentiality obligation agreed upon in a contract as a confidentiality obligation set forth in paragraph 1, Article 9 of the Anti-Unfair Competition Law.
Where the parties have not agreed on the confidentiality obligation in their contract, but the alleged infringer knows or should have known that the information obtained by it or him belongs to the trade secret of the right holder according to the principle of good faith and the contract nature, purpose, conclusion process, and trading practices, the people's court shall determine that the alleged infringer shall assume the obligation to keep confidential the trade secret obtained by it or him.
Article 11 A people's court may determine operators and managers of and other personnel having labor relations with a legal person or an unincorporated organization as employees or former employees set forth in paragraph 3, Article 9 of the Anti-Unfair Competition Law.
Article 12 A people's court may, when determining whether an employee or a former employee has channels or opportunities to obtain a right holder's trade secret, consider the following factors in relation thereto:
(1) His or her duties, responsibilities and authority.
(2) The job undertaken by him or her or task assigned to him or her by the entity.
(3) Specific circumstances of his or her participation in production and distribution activities relating to the trade secret.
(4) Whether he or she keeps, uses, stores, reproduces, controls or otherwise accesses or obtains any trade secret and the carrier thereof.
(5) Other factors that need to be taken into consideration.
Article 13 Where there is no substantial difference between any alleged infringing information and relevant trade secret, the people's court may determine that the alleged infringing information is substantially identical to the trade secret set forth in paragraph 2, Article 32 of the Anti-Unfair Competition Law.
A people's court may consider the following factors when determining whether it is “substantially identical” to that set forth in the preceding paragraph:
(1) The degree of similarity and difference between the alleged infringing information and the trade secret.
(2) Whether it is easy for the relevant personnel in the relevant field to think of the difference between the alleged infringing information and the trade secret when an alleged infringement occurs.
(3) Whether the alleged infringing information is substantially different from the trade secret in terms of purposes, use methods, objectives, and effects, among others.
(4) Situation relating to the trade secret in public fields.
(5) Other factors that need to be taken into consideration.
Article 14 The people's court shall determine the alleged infringing information obtained through independent development or reverse engineering as not constituting the infringement upon trade secrets as set forth in Article 9 of the Anti-Unfair Competition Law.
For the purpose of the preceding paragraph, “reverse engineering” means obtaining relevant technical information of a product obtained from any public channel by technical means through disassembling, survey and mapping, and analysis of the product.
Where an alleged infringer that has obtained the trade secret of the right holder by improper means claims no infringement upon the trade secret on the ground of reverse engineering, the people's court shall not support the claim.
Article 15 Where the respondent is attempting to obtain, disclose, use or allow any other person to use, or has obtained, disclosed, used or allowed any other person to use the trade secret claimed by a right holder by improper means, the people's court may render a ruling to take preservation measures in accordance with the law, if the failure to take preservation measures will make it difficult to enforce the relevant judgment or cause other damage to any party or cause irreparable damage to the right holder's lawful rights and interests.
Where any of the circumstances set forth in the preceding paragraph falls under emergency set forth in Article 100 or Article 101 of the Civil Procedure Law, the people's court shall render a ruling within 48 hours.
Article 16 Where a natural person, legal person or unincorporated organization other than dealers infringes upon any trade secret, if the right holder claims that the infringer shall assume civil liability in accordance with Article 17 of the Anti-Unfair Competition Law, the people's court shall support the claim.
Article 17 Where a people's court renders a judgment on the civil liability for ceasing the infringement upon a trade secret, the time for cessation of infringement shall generally last until the trade secret has been known by the public.
Where the time for cessation of infringement as determined in a judgment according to the provisions of the preceding paragraph is evidently irrational, the people's court may, under the premise of legally protecting the competitive advantages of the right holder in terms of the trade secret, render a judgment that the infringer shall cease using the trade secret within a certain period or scope.
Article 18 Where a right holder requests a judgment ordering an infringer to return or destroy the carrier of any trade secret, or clear any information on trade secret under the control of the infringer, the people's court shall generally support the request.
Article 19 Where a trade secret is known by the public due to infringement, a people's court may take into consideration the commercial value of the trade secret when determining the amount of compensation in accordance with the law.
A people's court shall, when determining the commercial value set forth in the preceding paragraph, take into consideration such factors as research and development cost, income obtained from the exploitation of the trade secret, available benefits and period of time during which competitive advantages may be maintained.
Article 20 Where a right holder requests the determination of actual loss caused due to infringement by reference to the royalty of the trade secret, the people's court may determine the actual loss based on such factors as the licensing nature, content, actual performance, as well as the nature, circumstances and consequences of the infringement.
A people's court may, when determining the amount of compensation in accordance with paragraph 4, Article 17 of the Anti-Unfair Competition Law, take into consideration such factors as the nature, commercial value, research and development cost, and degree of innovation of the trade secret, competitive advantages it may bring, the infringer's subjective fault as well as the nature, circumstances and consequences of the infringement.
Article 21 Where a party or a person that is not a party to the case applies in writing to the people's court for taking measures to keep confidential evidence and materials involving the trade secret of the party or the person that is not a party to the case, the people's court shall take necessary confidentiality measures during preservation, exchange of evidence, cross-examination, entrusted authentication, questioning, court trial and other legal proceedings.
Whoever, in violation of the requirements for confidentiality measures set forth in the preceding paragraph, discloses any trade secret without authorization or uses any trade secret other than in legal proceedings or allows any other person to use any trade secret accessed or obtained in legal proceedings shall assume civil liability in accordance with the law. If any of the circumstances set forth in Article 111 of the Civil Procedure Law is constituted, the people's court may take compulsory measures in accordance with the law. If it is criminally punishable, the offender shall be held criminally liable in accordance with the law.
Article 22 A people's court shall, when trying a civil case concerning the infringement upon any trade secret, examine the evidence formed in criminal proceedings for the crime involving the infringement upon trade secret in a comprehensive and objective manner according to legal procedures.
Where a party to a civil case concerning the infringement upon a trade secret and its agent ad litem are unable to collect on their own the evidence relating to an alleged infringement, which is kept by the public security authority, procuratorial authority or people's court due to any objective reason and apply for investigation and evidence collection, the people's court shall approve the application, except that it may affect ongoing criminal proceedings.
Article 23 Where a party claims the determination of the amount of compensation in a civil case involving the same infringement upon trade secret based on the actual loss or illegal income determined by an effective criminal judgment, the people's court shall support the claim.
Article 24 Where a right holder has provided prima facie evidence on the benefits obtained by the infringer from the infringement, but the account books and materials relating to the infringement upon trade secret are possessed by the infringer, the people's court may, upon the application of the right holder, order the infringer to provide such account books and materials. If the infringer refuses to provide such account books or materials without any justified reason or fails to provide them in a truthful manner, the people's court may determine the benefits obtained by the infringer from the infringement based on the claim of and evidence provided by the right holder.
Article 25 Where a party requests the suspension of trial of a civil case concerning the infringement upon any trade secret on the ground that a criminal case involving the same alleged infringement upon trade secret has not been concluded, the people's court shall support the request if it deems after soliciting the opinions of the parties that the trial result of the criminal case must be taken as the basis.
Article 26 Where the licensee of a sole licensing contract on the exclusive use of a trade secret files a lawsuit against an infringement upon a trade secret, the people's court shall accept the lawsuit in accordance with the law.
Where the licensee of an exclusive license contract files a lawsuit jointly with the right holder, or separately under the circumstance that the right holder does not file any lawsuit, the people's court shall accept the lawsuit in accordance with the law.
Where the licensee of a simple license contract files a lawsuit jointly with the right holder, or separately upon the right holder's written authorization, the people's court shall accept the lawsuit in accordance with the law.
Article 27 A right holder shall clarify the specific content of a trade secret claimed before the conclusion of first-instance court debate. If only certain aspects can be specified, the people's court shall try the specified part.
Where a right holder separately claims in second-instance proceedings the specific content of a trade secret that are not clarified in first-instance proceedings, the people's court of second instance may conduct mediation regarding the claim related to the specific content of the trade secret on a voluntary basis, and shall inform the party to file a separate lawsuit if mediation fails. If both parties agree on the joint trial of the case by the people's court of second instance, the people's court of second instance may try the case on a consolidated basis.
Article 28 Where a people's court tries a civil case concerning the infringement upon a trade secret, the law when the alleged infringement occurs shall apply. If the alleged infringement has occurred before the law is amended and continues after the law is amended, the amended law shall apply.
Article 29 These Provisions shall come into force on September 12, 2020. For any discrepancies between these Provisions and any judicial interpretation previously issued by the Supreme People's Court, these Provisions shall prevail.
A pending case in a people's court of first or second instance after these Provisions come into force shall be governed by these Provisions after these Provisions come into force; but a case, for which an effective judgment has been rendered before these Provisions come into force shall not be retried according to these Provisions.
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