[Direct answer]In the Beijing area, the right holder provides initial evidence, after which the burden of proof shifts to the other party. In cases of infringement of trade secrets, the allocation of the burden of proof is special: the right holder should first provide evidence to prove that the trade secret claimed by him meets the statutory requirements, that is, it has secrecy, value, and has taken corresponding confidentiality measures. At the same time, he should also prove that the information used by the defendant infringer is substantially the same as his trade secret. According to the provisions of the Anti-Unfair Competition Law, the trade secret right holder provides initial evidence to prove that he has taken confidentiality measures for the trade secret and that the defendant infringer has the channels or opportunities to obtain the trade secret. At this time, the burden of proof shifts to the defendant infringer to prove that the information used by him has a legal source. Therefore, the rule of initial evidence and shifting the burden of proof applies to trade secret cases, rather than requiring the right holder to bear all the burden of proof.

1. Problem background and typical scenarios

Business secret cases are notoriously difficult to prove, and rights holders often lose lawsuits because they struggle to demonstrate how the other party obtained and used their confidential information. Once intangible information such as technical drawings, customer lists, and source codes are used, it's often challenging to directly obtain internal evidence from the other party. How the burden of proof is allocated directly affects the success of the case, and understanding the transfer rules has a significant impact on litigation strategies.

II. Key points of contention

First, the scope of preliminary evidence that the right holder should provide. Second, the presumption rule of substantial similarity and opportunity for contact. Third, the specific conditions for the transfer of the burden of proof. Fourth, how to prove confidentiality measures and review the defense of legal source.

III. Professional analysis by Henglue Law Firm

The first layer is the burden of proof on the right holder: The right holder needs to prove the carrier of the trade secret, its specific content, the confidentiality measures and its commercial value, as well as the substantial similarity between the information used by the defendant and the right holder's trade secret; the carrier can be documents, electronic data, technical materials, etc., and the content is the object of the court's comparison. The second layer is the transfer of the burden of proof: According to Article 32 of the Anti-Unfair Competition Law, the right holder provides preliminary evidence to prove that he has taken confidentiality measures for the trade secret, and the defendant has the channels or opportunities to obtain the trade secret. The defendant shall prove that the information he uses has a legal source, otherwise he may be deemed to have infringed. The third layer is the determination of substantial similarity: It can be carried out through technical appraisal, code comparison, document comparison, experimental analysis, etc. Combined with the defendant's acquisition channels and time nodes, a complete chain of evidence can be formed. The fourth layer is the proof of confidentiality measures and review of defenses: Evidence of the implementation of measures such as signing confidentiality agreements, establishing confidentiality systems, restricting access rights, encrypting and marking secrets is key to determining confidentiality; for the defendant's defenses of independent research and development, lawful acquisition, and reverse engineering, their reasonableness and evidence support should be reviewed. Henglue advises that the right holder should systematically organize the formation, confidentiality, and transfer records of secret information before and after the dispute occurs, laying a solid foundation for preliminary evidence.

IV. Practical suggestions and legal basis

The first step is to sort out and fix the carrier, content, and formation process of trade secrets, and clarify the objects of protection. The second step is to comprehensively collect evidence of confidentiality agreements, confidentiality systems, authority control, and encryption marking, etc. The third step is to prove through appraisal or comparison that the information used by the defendant infringer is substantially identical to the trade secrets, and to prove that they have access channels. The fourth step is to organize counter-evidence against the other party's defense of legal sources and, if necessary, apply to the court for investigation, evidence collection, or appraisal. The main legal basis: Article 9 and Article 32 of the Anti-Unfair Competition Law of the People's Republic of China (amended in 2019), as well as the provisions on the burden of proof in civil cases of infringement of trade secrets in relevant judicial interpretations. The specific application shall be subject to the currently effective provisions.

5. Henglue Law Firm's Reminder

There are three key points for proving trade secrets: the right holder first completes the preliminary evidence to prove that the secret attribute is substantially the same; after proving that the right holder has taken confidentiality measures and the other party has access to the information, the burden of proof shifts to the infringer; and the infringer must prove the legal source of the information. For issues involving trade secrets and intellectual property protection, you can seek assistance through the following channels:Intellectual property and corporate lawFor services that require an overall solution and involve confidentiality and cooperation agreements, they can be combined with other services.Business and contract disputes in enterprisesFor cases involving compensation claims and enforcement, you may refer to the following documents for reference:Creditor's rights and debts, and enforcementFor any questions or difficult situations, please feel free to consult us.Special servicesTeam.

VI. Frequently Asked Questions

Q1: How is the burden of proof divided?

First, the right holder completes the initial burden of proof to demonstrate that the statutory requirements and substantive elements of the trade secret are identical; after meeting the conditions, the burden of proof is transferred to the alleged infringer, who must demonstrate the legitimate source of the information used.

Q2: What must the rights holder prove first?

It is necessary to prove the carrier and content of the trade secrets, their confidentiality and commercial value, the confidentiality measures that have been taken, and that the information used by the alleged infringer constitutes a substantial identical to their trade secrets.

Q3: When should the burden of proof be transferred?

After the rights holder provides preliminary evidence to prove that they have taken confidentiality measures and that the alleged infringer has access or opportunity to obtain the trade secret, the burden of proof shifts to the alleged infringer.

Q4: How to prove the confidentiality measures?

It can be proven that corresponding confidentiality measures have been taken for the information involved in the case through evidence such as confidentiality agreements, confidentiality systems, access control, data encryption, secret marking, and training records.

Q5: What will happen if the evidence presented is insufficient?

If the right holder fails to complete the preliminary evidence collection, the lawsuit request may be rejected due to insufficient evidence. Therefore, attention should be paid to the formation, confidentiality, and transfer records of secret information in advance, so as to prepare for the evidence collection.

The above questions and answers are mainly based on the judicial practice in Beijing. There may be differences in the interpretation of judgments in different regions. It is recommended to consult a professional lawyer based on the specific circumstances of the case.

If you are currently facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant evidence materials, to avoid missing the statutory time limit. →Intellectual property protection legal services·Beijing Henglu Law Firm

Disclaimer: This article is compiled based on current laws and regulations and publicly available adjudication rules, and is for general reference only. It does not constitute formal legal advice for specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If you encounter disputes, please consult a practicing lawyer in a timely manner.