Distribution And Mitigation Of Burden Of Proof In Trade Secret Infringement Proceedings

The intangible nature of infringement of trade secrets makes it more complicated than general infringement litigation.Therefore,scientific and reasonable distribution rules of the burden of proof are particularly important.As the rule of "who claims,who provides evidence" in the first paragraph of Article 64 of the Civil Procedure Law is too general,it is unable to bear the burden of allocating the burden of proof for infringement of trade secrets.Judicial policy once stipulated that trade secret cases should be subject to the rule of inversion of burden of proof,but the Supreme Court denied this rule in related cases due to the lack of clear provisions in the law and the tendency to leak the defendant’s trade secrets.To solve the problem of the absence of the distribution rules of the burden of proof,the "Judicial Interpretation of the Anti-Unfair Competition Law" stipulates the content of the distribution of the burden of proof in trade secret infringement cases.Since it is difficult for the right holder to obtain direct evidence of the infringement,the court usually applies the "contact plus substantially identical" rule of fact presumption to determine whether the infringement is established.Due to the lack of clear provisions in the law,this rule is difficult to effectively restrict the discretion of judges.In order to restrict the discretion of judges,Article 32 of the Anti-Unfair Competition Law clearly stipulates the presumption of fact,that is,the presumption of fact in law.If the right holder proves the indirect facts successfully,it can produce the legal effect that the presumed facts are proved.The infringer can either provide counter-evidence or provide this evidence to exclude the legal effect of the presumption.In addition,in order to reduce the difficulty for the right holder to prove the facts to be proved,the first and second paragraphs of Article 32 also adopt the wording of "prima facie evidence",and the right holder proves that confidentiality measures have been taken and the infringement has been established to a low probability.The degree can meet the certification standards required by law.