Evidentiary Shift Protocols and Notarization Requirements in PRC Trade Secret Proceedings
PRC trade secret claims succeed by establishing granular secrecy measures, notarizing electronic access logs locally, and triggering Article 32 burden shifts.
Article 32 Burden Shift
Meaning
Legal mechanisms that reassign the weight of proof in trade secret litigation constitute the article 32 burden shift. This provision in the Anti-Unfair Competition Law of the People’s Republic of China requires a plaintiff to provide preliminary evidence of secrecy and misappropriation before the responsibility to prove non-infringement moves to the defendant. Judicial practice applies this rule to reduce the difficulty of evidence collection for plaintiffs who hold confidential assets.
Statutory Application
Requirements for the article 32 burden shift involve the demonstration of substantial identity between the plaintiff’s secret and the information used by the defendant. The People’s Courts evaluate whether the defendant had access to the secrets or a high probability of obtaining them through improper means. Authorities such as the State Administration for Market Regulation use these criteria to determine when an investigation must proceed.
Evidence Requirement
Administrative enforcement depends on the plaintiff proving that reasonable security measures were in place to maintain the confidentiality of the specific information. The article 32 burden shift applies only after the rights holder provides a prima facie case that their commercial interests suffered from the unauthorized use of the data. Evidence of similar technical routes or overlapping customer lists often triggers the procedural change.
This specific requirement ensures that the defendant must then prove their information comes from independent research or legitimate reverse engineering.
Legal Effect
Liability for infringement becomes much harder to avoid once the court activates this mechanism. The article 32 burden shift changes the litigation landscape by forcing the defendant to open their technical records for inspection. Such disclosure often reveals the origins of the competing product or service.