I. The basic situation of judicial protection of trade secret in China
The trade secret protection in China started in the 1990s, when the Law Anti-unfair Competition of PRC was promulgated. The Supreme Court issued two important judicial interpretations about technology contract and the application of the Law anti-unfair Competition of PRC etc. after 2000, which has perfected the legal protection of trade secret. In the recent years, the Supreme Court has attached great importance to and greatly strengthened the trial work of trade secret cases, and constantly enhanced the protection of trade secret through ways of judicial interpretations, judicial policies, case instructions etc., which has protected the legitimate rights of trade secret owners effectively.
1 The basic rules and characteristics of trade secret cases
Regarding the acceptance of trade secret cases in people’s courts, this kind of cases has the following characteristics. First, the total amount of trade secret cases is not very large, which is basically stable at an annual amount of about 200-250, but it is of a large proportion of the unfair competition disputes which is around 20%. Second, the area distribution of trade secret cases is extremely unequal. They are concentrated mainly in the developed areas, while many less developed inland provinces have not yet accepted any trade secret cases. Third, according to the distribution of causes of cases, cases about infringement of management secrets are of a large proportion which is around 60%. Fourth, it is very difficult for the Plaintiff to collect evidence. The infringement of trade secret is mainly implemented by former employees, which cannot be easily found in advance. It’s very difficult for the right holder to have a comprehensive grasp of the evidence to prove the infringer’s implementation and profits of infringement.
2 The basis and judicial policies of judicial protection of trade secret
In order to solve the problem of specific legal application involved in trade secret cases, the Supreme Court has promulgated the relevant judicial interpretations, and also cleared boundaries, solved knotty problems as well as cleared the relevant judicial policies by ways of conferences on judicial work and issuance of conference document.
In terms of judicial interpretation, the Supreme Court has regulated relevant provisions about trade secret protection in many judicial interpretations. The Supreme Court issued Interpretation of the Supreme People's Court concerning Some Issues on Application of Law for the Trial of Cases on Disputes over Technology Contracts (come into force on January 1, 2005) on November 30,2004.This interpretation regulates the provisions about issues of handling of technology contracts infringing others’ technical secrets(Article 12, Article 13), use and dispose of technological secret achievement in technological development contracts (Article 20), and the assignment and licensed use of technological secrets. The Supreme Court issued Interpretation of the Supreme People's Court on Some Issues Concerning the Application of Law in the Trial of Civil Cases Involving Unfair Competition （come into force on February 1, 2007）on December 30,2006. The interpretation makes very detailed and specific provisions about trade secret protection in 9 articles in total from Article 9 to Article 17, which is the most complete and the most important judicial interpretation about trade secret protection so far.
In order to unify the legal application and the judgment standard, the Supreme People's court also guides the judicial practice of trade secrets through judicial policies. The judicial policies are embodied in the leading comrades’ speeches and judicial documents issued by the Supreme People's court. For example, Notice of the Supreme People's Court on Issuing the Opinions on Issues concerning Maximizing the Role of Intellectual Property Right Trials in Boosting the Great Development and Great Prosperity of Socialist Culture and Promoting the Independent and Coordinated Development of Economy has the most complete provisions of key issues about trade secret protection so far, for instance the reasonable grasp of the proof standard, lower the difficulties of proof, reasonable grasp of the scope of protection, relationship between trade secret protection and free choice of occupation and non-competition restrictions. The notice clearly puts forward to resolve the difficulties right holder has when they need to prove trade secret infringement, and stipulated that the Court should reasonably verify the standard of secret and improper means, and moderately reduce the difficulties of maintaining legal rights for trade secret right holder according to the specific situation of the case. Therefore, the notice clarifies the specific measures to reduce the proof difficulties. For example, the notice points that,“Where the right holders have provided preponderant evidence on confidentiality or have made a sufficient and rational explanation or statement of the differences between their trade secrets and information in the public domain, confidentiality may be held established.”The notice also puts forward the fact presumption rules of trade secret infringement,“Where the right holders have provided evidence that the information possessed by the defendants is identical or substantially identical to their trade secrets and that the defendants are in a position to access or illegally obtain the trade secrets, if there is a high possibility that the defendants have adopted unjustifiable means in light of the specific circumstances of cases or known facts and daily life experience, it may be presumed that the defendants have adopted unjustifiable means to obtain the trade secrets in question, unless the defendants can prove that they have obtained relevant information by lawful means.”
3 The preservation measures before litigation and the evidence preservation of trade secret
Before the implementation of Civil Procedure Law of the People's Republic of China (2012 Amendment),there weren’t any provisions about taking preservation measures before filing the lawsuit as temporary injunction and evidence preservation in trade secret cases in Civil Procedure Law or Intellectual Property Law. So the people’s court has no right to take measures as above. The amended Civil Procedure Law (2012 Amendment) has added provisions about behavior preservation and evidence preservation before filing the lawsuit, and extended the scope to all areas of civil cases. According to this, the people’s court may take the preservation measures before the lawsuit is filed in trade secret cases.
In order to further strengthen the trade secret protection, the Supreme Court requires the courts at all levels promptly accept the application of the interested parties for behavior preservation and evidence preservation before filing the lawsuit, and take relevant measures positively. Meanwhile at the third National Conference on intellectual property adjudication of courts, the court’s leaders stressed that take intellectual property preservation measures positively and reasonably, make full use of the time sensitiveness of the preservation system, improve the promptness, convenience and effectiveness of intellectual property judicial remedy; increase the force of evidence preservation and obtaining the evidence by authority, which means that relevant measures shall be timely taken in line with the conditions of evidence preservation or investigating and collecting evidence. After the implementation of the new Civil Procedure Law, the Shanghai first intermediate people's court issued the first preliminary injunction related with trade secret in a trade secret infringement case involving American right holder, which has achieved great social effect. The third civil tribunal is currently drafting a judicial interpretation about preliminary measures before filing the lawsuit, in which the relevant issues will be further cleared.
Ⅱ The problems, defects and related suggestions of judicial protection of trade secret in China
1 The lack of a specialized law protecting trade secret.
At the present, China is still protecting trade secret according to a series of provisions scattered in different laws and regulations and there is lacking of a unified national law of trade secret protection. The current legislation is too scattered, and the content is relatively unilateral. Then, the current legislation lacks operability because of the generalness and confusion of concept, and the lack of uniformity of titles in the content. Last, the current legislation governing the protection of trade secret is Law of the People's Republic of China Anti-Unfair Competition, which makes a part of people not treat trade secret as a kind of intellectual property, but a kind of means of competition instead. Such is not good for effective trade secret protection.
Suggestions for perfection: Separate legislation should be made for trade secret protection, which is a trend on the protection of trade secret in the world. Since there are many defects in trade secret protection of our country, which can’t be completely solved by partial modifications. So the specialized Trade Secret Protection Law should be made in our country. In this law, the concept and ownership of trade secret should be cleared first. It should be cleared by domestic legislation that trade secret is an important intellectual property right and belongs to the absolute right of the classification of civil rights. In this way, it will be consistent with the provisions of the International Chamber of Commerce, the World Trade Organization and other international treaties. It should also clarify that when the trade secret owner’s rights are infringed, not only Trade Secret Protection Law can be applied, but also the relevant regulations of the civil law. In this way, the right holder can get compensation according to the relevant civil liabilities when his rights are infringed, which offers a better protection for the interests of trade secret right holders, enhances the law enforcement efforts of trade secret protection, and helps remove the fuzziness of legal identification.
2 The heavy burden of plaintiff proof in such cases.
In China, the burden of proof belongs to the plaintiff in trade secret civil trial. Moreover, the use of private detectives is restricted in the evidence collection process. So the plaintiff often has to spend a lot of time and resources gathering the infringement information.
Suggestions for perfection: It can be considered that we can add some special provisions about the burden of proof in trade secret litigation in the current Civil Procedure Law or its judicial interpretation, in order to solve the situation that the right holder is unable to safeguard their legitimate rights because of the difficulties of proof in the current litigation.