People · 05 Editorial guide
Trade Secrets and Employee-Created IP in China
Employee IP and trade-secret risk sits across ownership, access, contracts, technical controls and evidence. Separate confidentiality from paid non-compete restrictions, identify service-invention or commissioned-work rules, and preserve a lawful record before an exit or incident becomes a dispute.
First job Identify the protected information, ownership chain, access population and exit or incident stage.
Start here
Key considerations
The first questions are about urgency, governance and preservation — before collection expands or interviews begin.
- What information or IP is at risk?
- Who created it and who can access it?
- Is this onboarding, active access, exit, or an incident?
Direct answer
What this page decides
02
Employee confidentiality is a control system, not one clause. Identify each technical or business secret specifically enough to distinguish it from general skill and public information. Record its value, owner, authorised users and the secrecy measures actually protecting it. Separately resolve employee-created inventions, designs, software and other works under the relevant service-invention, authorship, contract and remuneration rules. Grant access by role, log high-risk repositories and update permissions when duties change. Confidentiality and post-employment non-competes are not the same: under the judicial interpretation effective September 1, 2025, a non-compete does not bind a worker who did not know or access protected trade secrets or IP-confidential information, and its scope must be proportionate to what was accessed. At exit or incident, preserve evidence lawfully before altering devices, accounts or logs; revoke access, recover materials, document return or deletion and route labour, civil, administrative or criminal issues separately.
At a glance
Which fact changes the next route
Use the fact that changes ownership or urgency to decide the next move.
| Question | Why it matters | Next route |
|---|---|---|
| What exactly is secret? | A label such as customer data or source code may not identify the claimed information or show it was non-public. | Describe its boundary, location, owner, value and permitted users without unnecessary disclosure. |
| Who created and owns the output? | Inventions, software, designs, documents and know-how follow different rules. | Map contributors, duties, employer resources, commission terms, assignments and remuneration. |
| Who actually accessed it? | Contracts unsupported by permissions, logs and real access history are weak operational evidence. | Reconcile role, repository, device, export and download records. |
| Is a non-compete justified? | Current rules connect enforceability and proportionality to protected information actually known or accessed. | Limit eligible people, competitors, business scope, geography and duration; plan compensation and release. |
| Is this an exit or an incident? | Routine offboarding and suspected exfiltration require different preservation, interview and escalation steps. | Freeze relevant evidence before wiping, reissuing or inspecting devices. |
Scope
What this page owns — and what it does not
Practical workflow
Action, evidence, legal gate, output
| Action | Documents / evidence | Legal gate | Output |
|---|---|---|---|
| Inventory assets and secrets | Code, formulas, processes, designs, customer and pricing information, research, negative know-how and plans | Separate protected information from public material and general skill | Particularised asset and secret register |
| Resolve creation and ownership | Contributors, job duties, employer resources, invention disclosures, commission terms, repositories and assignments | Apply the correct rule to inventions, designs, software, works and know-how | Creator and title matrix |
| Design access controls | Role matrix, repository permissions, devices, downloads, exports, printing, vendors and privileged accounts | Grant least-privilege access and create usable evidence | Access and control plan |
| Align contracts and policy | Employment, confidentiality, IP assignment, invention, acceptable-use, monitoring, contractor and non-compete terms | Match obligations to lawful controls and actual role | Signed workforce protection package |
| Operate and review | Training, acknowledgements, access reviews, project moves, exception approvals, invention capture and remuneration | Update control when people, projects or systems change | Ongoing compliance record |
| Run the exit | Notice, access map, device inventory, handover, deletion, return, interview, non-compete and compensation decision | Distinguish ordinary exit from suspected incident | Closed exit file |
| Preserve and investigate | Logs, devices, accounts, communications, downloads, external media, repository history and chronology | Use a lawful, scoped and forensically reliable method | Incident evidence package |
| Select remedy | Secret comparison, access and similarity evidence, use or disclosure, new-employer facts, loss, urgency and assets | Separate labour, contract, unfair-competition, preservation and criminal paths | Response and remedy plan |
Documents
What to gather before the next call
These items help clarify the file; they are not a legal requirement list.
| Item | Why needed | Who holds it | Risk if missing |
|---|---|---|---|
| Particularised secret register | Defines information, owner, value, storage and access population | Business owner, R&D, security and legal | The company cannot identify what was allegedly taken |
| Creator and ownership matrix | Connects contributions, duties, resources and contracts to each output | R&D, HR, procurement and IP | Title or inventor disputes emerge after filing or exit |
| Access-control and log map | Shows who could view, change, download or export protected information | IT, security and system owners | Policy conflicts with broad uncontrolled access |
| Employment and contractor terms | Records confidentiality, assignment, assistance, return, monitoring and lawful restrictions | HR, procurement and legal | Generic language does not match the asset or person |
| Non-compete decision file | Documents eligibility, protected access, proportional scope, compensation and release | HR and labour counsel | An overbroad restriction is ineffective or costly |
| Exit and forensic custody record | Preserves access revocation, device return, copies, deletion and evidence handling | HR, IT, security and counsel | Evidence is altered or unlawfully collected |
Common failure points
Where files usually break
Calling all company information confidential without identifying the claimed trade secret.
Giving entire teams permanent repository access while relying on a generic clause as the only secrecy measure.
Assuming every employee-created invention, design, software module or document follows the same ownership rule.
Omitting inventor contribution, service-invention and remuneration records until filing or departure creates conflict.
Applying non-competes to staff who never knew or accessed protected secrets or IP-confidential information.
Defining competitors, territory or restricted activity more broadly than actual access and risk justify.
Failing to make required compensation payments or document whether the restriction is activated or released.
Leaving access active after resignation, internal transfer, long leave, vendor termination or project closure.
Wiping or reissuing a device before deciding whether lawful forensic preservation is required.
Conducting an unscoped device or communications search without checking privacy, monitoring, data and labour limits.
Sending allegations before preserving access, copying and use evidence.
Treating labour arbitration, a trade-secret claim and criminal referral as one procedure with one threshold.
FAQ
Narrow follow-ups owned by this page
Is an NDA enough to create a trade secret?
No. A contract supports confidentiality, but the information must meet legal requirements and the holder should show reasonable secrecy measures appropriate to the circumstances.
Can every employee sign a post-employment non-compete?
A signed clause is not the whole analysis. Current rules require protected knowledge or access and proportional scope; eligibility, compensation, duration and local procedure also matter.
Does the employer own all employee software?
Not automatically in every situation. Review the work, duties, employer direction or resources, governing copyright and software rules, contract and contributor facts.
What should happen when an employee resigns?
Classify the exit, preserve evidence if warranted, revoke access, recover devices and materials, document return or deletion, decide any non-compete and retain a defensible record.
Can the company inspect an employee's personal device?
Not merely because business information may be present. Ownership, consent, policy, necessity, proportionality, personal information, data location and forensic method require review.
Decision map
Keep the question bounded.
- Map assets and ownershipIdentify the code, know-how, customer information, inventions and works; record creators, duties, employer resources, assignments and any inventor remuneration questions.
- Control access and contractsMatch least-privilege access, repositories and logs with confidentiality, IP assignment, acceptable-use and lawful non-compete terms.
- Run disciplined exitsRevoke access, recover devices and materials, confirm return or deletion, preserve relevant records and avoid overbroad restrictions.
- Respond to suspected takingPreserve devices and logs lawfully, particularise the alleged secret, trace acquisition or use and coordinate employment, data, civil and possible criminal routes.
Quick answers
Need the short version? Start with one narrow question.
These explainers answer one question. They do not replace this topic route or a deep guide.
Curated resources
Open the asset that matches this job.
Anti-Unfair Competition Law revised in 2025
Official NPC text, effective 15 October 2025, including the current trade-secret definition and prohibited conduct.
Patent Law of the PRC
Official CNIPA English reference text covering invention, utility model, design, service inventions and patent protection.
Copyright Law of the PRC (2020 Revision)
Official government text covering authorship, legal-person and employment-related works, audiovisual works, ownership, licensing, assignment and enforcement.
SPC Provisions on Civil Trade-Secret Cases
Official Supreme People's Court rules defining technical and business information, reasonable confidentiality measures, infringement, proof, preservation and remedies in civil trade-secret cases.
SPC Labour Disputes Interpretation II (2025)
Current judicial interpretation effective September 1, 2025, including proportionality and protected-access rules for employee non-compete restrictions.
Enterprise Non-Compete Compliance Guidance (2025)
Official Ministry of Human Resources and Social Security guidance on eligible employees, protected information, scope, compensation, implementation and compliance controls.
Helpful to prepare
Facts that make the next conversation clearer.
These items are orientation aids, not a legal requirement list.
Evidence file
Preserve the record before the forum is chosen.
This is a preparation prompt, not a finding that any item is admissible or required.
- Version-controlled technical and business files identifying the alleged secret and its development history.
- Employment duties, invention disclosures, contributor records, contractor scopes, assignments and remuneration records.
- Classification labels, policies, training, acknowledgements, physical controls and role-based permissions.
- Repository, authentication, download, print, email, cloud, removable-media and privileged-access logs retained under lawful policy.
- Role-change approvals, exception records, access recertification and third-party disclosure registers.
- Exit notices, access shutdown, device custody, return and deletion confirmations, interviews and compensation payments.
- Forensic images, hashes, chain of custody, chronology, new-employer facts and evidence of acquisition, use or disclosure.
Counsel hand-off
What to bring when you instruct
Bring the secret and asset register, ownership and contributor records, employment duties, invention and remuneration policies, contractor terms, confidentiality, assignment and non-compete documents, compensation history, access matrices, repositories and retention settings, training records, device and acceptable-use policies, role changes, exit chronology, device and material returns, preserved logs and forensic images, suspected downloads or disclosures, competitor and new-employer facts, loss and urgency evidence, prior communications and any labour, civil or criminal matter.
Local context
Add the city when the enforcement forum changes.
AIC/SAMR and court practice can differ after the national IP route is identified.
Open city and province guidesCounsel hand-off
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This hub organises filing, secrets and enforcement routes. It does not register rights, stop a squatter or bind CNIPA on your facts.
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