Changes in the constituent elements of trade secrets

1. Modify the definition of trade secrets

The consolidation of "economic benefits+practicality" in the old regulations into a broader "commercial value" has expanded the scope covered by the definition.

2. Expansion of commercial value

The new regulations clearly protect both real and potential value, including interim achievements, failed experimental data, and technical solutions within the scope of protection.

3. More rigorous non-public intellectual judgments

The new regulations take the occurrence of infringement as the point of judgment; New information formed through the organization, improvement, and processing of public information can be reorganized into non-public information.

4. Significant expansion of confidentiality measures

The old regulations only include traditional confidentiality agreements and systems;

New regulations have been added: digital scenario measures such as remote work, cross-border collaboration, permission grading, data anonymization, operation log retention, zoning management of confidential locations, and clearing of confidential information for departing employees.

 Expansion of protection scope

1. Technical information

The new regulations clearly include algorithms, computer programs, code, data, etc.

2. Business information

The new regulations clearly include in-depth information such as customer transaction habits, intentions, and content.

3. Customer Information

Unlike the old regulations, customer information is no longer just a list of customers, but also includes transaction habits, intentions, content, and other information.

More detailed and rigorous determination of infringement behavior

1. Add digital infringement such as "electronic intrusion"

Explicitly prohibited: intrusion into systems, servers, email accounts, cloud drives, malicious programs, vulnerability attacks, and unauthorized downloading and transmission of secrets.

2. It is explicitly prohibited to incite, entice, or assist in infringement

The old regulations did not provide separate provisions, while the new regulations include indirect infringement in the regulation.

3. Third party infringement rules are clearer

The new regulations specify that if someone knowingly or should have known that someone else is infringing, still obtains, uses, or discloses it, it shall be deemed as infringement.

4. Clarify the boundaries of legal behavior

New regulations refined: independent research and development, reverse engineering, common knowledge and experience of former employees, and disclosure for public interest in accordance with the law without infringement.

 Significant breakthrough in evidentiary rules (most critical change)

1. Establish the presumption of infringement rule of "substantial similarity+possibility of contact"

The right holder can infer infringement by proving two points:

01. Suspected infringer uses information that is essentially identical to trade secrets;

02. The suspected infringer has the conditions to obtain trade secrets.

2. The burden of proof is transferred to the infringer

After the presumption of infringement is established, the burden of proof shifts to the suspected infringer, who must prove that they have lawfully obtained or used it, otherwise it will be deemed as infringement.

3. Support identification and expert opinions

It is clear that judicial appraisal can be conducted for non-public knowledge and substantive similarity.

 Upgrading of jurisdiction and law enforcement authority

1. Upgrading jurisdiction over technical secret cases

New regulation: Technical secrets are generally under the jurisdiction of market supervision departments at or above the city level.

2. Law enforcement measures have been significantly strengthened

The old regulations only require inspection, inquiry, and copying of materials;

New regulations added: sealing, seizing property, checking bank accounts, and clarifying hierarchical approval.

3. Strengthen law enforcement confidentiality obligations

Law enforcement personnel must maintain confidentiality, and administrative penalty decisions shall not disclose the contents of trade secrets.

4. Emphasize the principle of minimal intervention

Emphasize the principle of minimal intervention to minimize the impact on normal operations.

 Significant increase in legal liability

1. The upper limit of fines has been significantly increased

The maximum amount under the old regulations is 200000 yuan;

New regulations: Generally 100000 to 1 million, and in severe cases, 1 to 5 million.

2. Clarify the situation of "serious circumstances"

Including: significant losses, serious impact on operations, harm to national interests, repeat offenses within two years, etc.

3. More specific measures to stop infringement

Order to cease use, return/destroy carriers, destroy infringing products, and clear trade secrets, with a period generally lasting until the secret is no longer a secret.

 Other significant institutional changes

1. Expansion of the scope of rights holders

The new regulations clearly include: owner+licensee+authorized person.

2. Add extraterritorial effect

If overseas activities infringe on trade secrets and harm the rights and interests of domestic operators, these regulations shall apply.

3. Linking with the State Secrets Law

If it is a state secret at the same time, the confidentiality law shall prevail.

4. Implementation deadline

The new regulations will officially come into effect on June 1, 2026.