A successful China trade-secret claim begins by identifying the protected information precisely. The claimant must address whether the information was non-public, commercially valuable and protected by corresponding confidentiality measures, then connect the defendant to prohibited acquisition, disclosure or use. A broad allegation that “our technology” or “our customer data” was stolen is rarely an adequate evidence plan.
The 2025 Anti-Unfair Competition Law, effective 15 October 2025, continues statutory protection and burden-shifting rules for trade-secret disputes. Companies should preserve systems and devices lawfully, build an access-and-similarity chronology, protect the secret during proceedings, and choose civil, administrative or criminal routes according to evidence and objectives.
Direct answer
Define each claimed secret in a confidential schedule; prove why it was not publicly known, why it had commercial value and what secrecy measures existed before the alleged act. Preserve authentic source files, access logs, communications, devices and comparison evidence. Then map acquisition, disclosure or use by each proposed defendant and prepare the preliminary evidence needed for statutory burden rules and urgent relief.
Do not assume an NDA, employee departure or product similarity alone proves misappropriation. The case must connect a protectable secret to prohibited conduct while accounting for independent development, public information and lawful reverse engineering.
The statutory elements
Under the 2025 Anti-Unfair Competition Law, a trade secret is technical, business or other commercial information that is not known to the public, has commercial value and is subject to corresponding confidentiality measures. The categories can include formulas, processes, algorithms, source code, data, pricing, plans and qualifying customer information.
The Supreme People’s Court’s civil provisions clarify that information readily available to relevant industry participants is not secret. A new compilation or improvement of public information can still qualify where the resulting information meets the legal test.
Identify the secret with specificity
Create a secret schedule with one row for each claimed item. Record:
- a precise description and confidential identifier;
- the source file, version and creation history;
- what is public and what remains non-public;
- commercial value and useful life;
- owner and standing basis;
- authorized users and external recipients; and
- controls applied before the alleged conduct.
Courts require the claimant to clarify the specific content claimed, generally before the end of first-instance debate. Keep the public pleading appropriately framed while preparing a sealed or confidential schedule for the court process.
Corresponding confidentiality measures
Measures must be appropriate to the information, carrier, value, identifiable confidentiality level and access risks. An NDA helps but is not the whole system.
Evidence can include role-based permissions, classifications, labels, encryption, visitor restrictions, locked areas, device controls, logging, training, policies, supplier terms and exit return/deletion procedures. Match controls to the particular secret. Calling every document confidential without enforcing access rules can weaken credibility.
Prohibited conduct
The law addresses acquisition by theft, bribery, fraud, coercion, electronic intrusion or other improper means; disclosure, use or permission to use information obtained improperly; and disclosure or use in breach of confidentiality duties. Inducing, instigating or helping another person breach can also create exposure.
A third party can face liability where it knows or should know that an employee, former employee or another actor engaged in prohibited conduct and nevertheless obtains, discloses, uses or permits use. Analyze the employee, new employer, supplier, intermediary and affiliate separately.
Preserve evidence immediately and lawfully
Issue a targeted hold and preserve relevant accounts, logs, repositories, communications and devices without changing originals. Record custodian, system, collection time and method; use forensic copies and hashes where appropriate. Avoid informal searches that overwrite metadata or exceed lawful monitoring and personal-information boundaries.
Build a chronology covering access, unusual downloads, resignation or commercial events, communications, incorporation or hiring, product development and market launch. Preserve the claimant’s original technical files and obtain the accused product or service through a defensible channel.
Access and substantial similarity
Direct evidence of copying is uncommon. A claimant may build a structure showing that the defendant had a channel or opportunity to obtain the secret and used information substantially identical to it. Technical comparison should isolate secret points and explain similarities and meaningful differences.
Opportunity plus similarity is not a licence to skip the statutory elements. The defendant may show public availability, independent development, lawful receipt or reverse engineering of a product obtained through public channels.
Burden rules
The Anti-Unfair Competition Law provides burden-shifting mechanisms once the rights holder supplies the required preliminary evidence. Evidence of confidentiality measures and facts reasonably indicating infringement can shift the issue of whether the claimed information is a trade secret. Specified preliminary evidence of infringement, including access or opportunity plus substantial identity, can require the suspected infringer to show it did not infringe.
Treat burden shifting as a litigation framework, not a replacement for preparation. The claimant still needs a coherent secret definition, authentic evidence and a fact-specific link to the defendant.
Employees, suppliers and commercial partners
For employee cases, preserve job duties, permissions, projects, downloads, devices, exit certifications and the new role. An employee’s move to a competitor does not by itself prove wrongdoing. Employment confidentiality duties and any non-compete obligation should be analyzed separately.
For suppliers, joint-development partners and customers, preserve the disclosure path, contract purpose, permitted users, subcontracting, return/deletion duties and later use. Track which version was disclosed and to whom; a generic NDA cannot replace a disclosure register.
Urgent civil relief
Where threatened or ongoing conduct risks irreparable harm or making judgment difficult to enforce, a claimant may seek behavior preservation under the applicable rules. The SPC provisions state that a court can act within 48 hours where the statutory urgency test is met.
Prepare a precise secret schedule, proof of controls, infringement evidence, urgency and harm, a narrowly framed requested order and any required security. Relief is discretionary and a wrongful application can create liability.
Confidentiality during proceedings
Litigation itself can expose the information. Request confidentiality measures for preservation, evidence exchange, technical examination, hearings and expert work. Use restricted access, redacted public versions and controlled expert materials as permitted by the court.
Coordinate any cross-border evidence transfer with Chinese data, cybersecurity, state-secrets and archive rules. Do not export whole mailboxes or technical repositories merely because foreign counsel requests them.
Remedies and damages
Civil relief can include stopping infringement, return or destruction of carriers, deletion of controlled information and damages. The duration and scope of an injunction should protect the competitive advantage without exceeding what is justified. Preserve evidence of loss, infringer gain, licence benchmarks, development costs, commercial value, duration of advantage and reasonable enforcement expenses.
The revised law also provides enhanced consequences for intentional serious conduct and statutory-damages rules where loss or gain is difficult to establish. The applicable provision and amount must be checked against the pleaded conduct and current law; do not promise a recovery figure.
Administrative and criminal routes
Market-regulation authorities may investigate trade-secret infringement and impose administrative measures and penalties under the Anti-Unfair Competition Law. Serious conduct may also warrant criminal referral. Civil, administrative and criminal standards, powers and objectives differ.
Coordinate the routes so preservation steps, statements and technical definitions remain consistent. Criminal allegations should never be used as unsupported settlement pressure. The criminal-liability specialist page remains the owner of thresholds and referral detail.
Response plan for the accused party
Preserve the development history, public sources, clean-room controls, hiring instructions and records showing that confidential materials were rejected or quarantined. Suspend questionable access without destroying evidence. Separate public knowledge and independently developed features from the claimant’s asserted secret points.
Investigate each recipient and system, enforce the hold, and avoid contacting the claimant’s personnel informally. A credible independent-development record is built during ordinary operations, not after suit begins.
First-response checklist
- Engage the cross-functional legal, security and technical team.
- Preserve relevant systems, accounts, logs, devices and originals.
- Define each secret and its public/non-public boundary.
- Prove value, ownership and pre-existing confidentiality measures.
- Map authorized access and every external disclosure.
- Build the acquisition, disclosure, use and launch chronology.
- Obtain and preserve comparison material defensibly.
- Assess burden shifting, preservation and confidentiality requests.
- Quantify harm and preserve damages records.
- Coordinate civil, administrative, criminal and data-transfer issues.
Common mistakes
- Describing the secret as an entire technology or database.
- Treating an NDA as conclusive proof of secrecy measures.
- Editing original files or destroying employee data after suspicion arises.
- Assuming departure plus similarity proves copying.
- Ignoring lawful reverse engineering or independent development.
- Naming a new employer without evidence of knowledge or use.
- Disclosing the secret unnecessarily in public pleadings.
- Mixing civil and criminal standards or making unsupported threats.
Sources
- Anti-Unfair Competition Law of the People’s Republic of China, National People’s Congress, 2025 revision effective 15 October 2025.
- SPC Provisions on Several Issues Concerning the Application of Law in Civil Cases Involving Trade Secret Infringement, Supreme People’s Court.
General legal information only; not legal advice for a particular secret, investigation, employee, supplier or proceeding.
