Answer: If a trade secret right holder wants to pursue the liability of a tortfeasor, they must prove the existence of the trade secret and the infringement act committed by the tortfeasor. Therefore, whether the right holder can prove the existence of the infringement act is a necessary condition for infringement damages.
According to “What are the types of infringement of trade secrets?”, Infringement of trade secret includes three types of acts: acquisition, disclosure, and use.
In the case of acquisition and disclosure of trade secret, the right holder usually only knows that the defendant has engaged in illegal acquisition or disclosure of trade secrets, but does not have evidence that the defendant has used the trade secrets or use infringement has not yet occurred. According to the principles of Chinese civil law, in general, the right holder of intellectual property (including trade secret) should be responsible for proving the existence of the defendant’s infringement act. According to this principle, the burden of proof of infringement in the cases of acquisition and disclosure of trade secrets should certainly be borne by the right holder.
The right holder can provide the following evidence in the acquisition and disclosure infringement cases: email (for example, the defendant sends the company’s trade secrets to their private mailbox through email), storage devices for storing trade secrets, technical drawings, the possibility or history of the tortfeasor’s access to trade secrets, etc.
The burden of proof of use infringement is a very complex legal issue. Average readers may just want to see the following conclusion: for whether the infringement act exists or not, the courts should first examine the existing evidence, including the characteristics of the technology information, the history of employees’contact with the information involved, the unlawful nature of employees’series of acts on the information involved, their technical ability, and the evidence of research and development of both parties. If it is preliminarily judged that the probability of infringement is higher than that of non-infringement, the defendant shall bear the burden of proof to prove non-infringement (typically to apply for a technical appraisal and prepay the appraisal fees); if the defendant cannot prove non-infringement, the infringement is established; and vice versa. Readers interested in reading a detailed legal analysis can see “How to prove use infringement of trade secrets?”
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Mr. Dong Wang has been in practice for over 20 years, specializing in business law, including employment law, commercial law, company law, and intellectual property law. Mr. Wang has earned respect and trust from his clients due to his professionalism, fidielty, and kindness.
Email: wangdong@royalaw.com