[Direct answer]In the Beijing area, evidence collection should focus on the three elements of trade secrets and the two dimensions of infringement. According to Article 9 of the Anti-Unfair Competition Law of the People's Republic of China (adopted in 1993 and amended in 2019), trade secrets refer to technical information, business information, and other commercial information that are not known to the public, have commercial value, and are subject to corresponding confidentiality measures taken by the rights holder; operators shall not acquire the trade secrets of the rights holder by theft, bribery, fraud, coercion, electronic intrusion, or other improper means. According to Article 67 of the Civil Procedure Law of the People's Republic of China (adopted in 1991 and amended in 2023), the party who makes a claim is responsible for providing evidence. Therefore, evidence collection should cover four types of materials: first, evidence of secrecy, which proves that the information is not known to the public; second, evidence of value, which proves that it has actual or potential commercial value; third, evidence of confidentiality measures, including confidentiality agreements, access rights settings, encryption and marking systems; fourth, evidence of infringement, including the specific acts of the infringer in obtaining or using the information. In terms of evidence collection methods, it can be through notarized purchases, notarized web pages, fixed electronic data, extraction of email and chat records, and evidence collection from the devices of departed employees; when necessary, pre-litigation injunctions can be applied to stop the continuation of infringement.

I. Problem Background and Typical Scenarios

Business secret disputes are common in technology companies and new economy industries. Typical cases include: core technical personnel leaving the company to join competitors, taking away technical solutions or customer lists; competitors obtaining business data through improper means; employees uploading technical documents to personal cloud drives; partners disclosing technical materials in violation of confidentiality obligations; and former employees using the original company's pricing strategies and customer resources in their new positions. The greatest challenge in such cases is providing evidence: not only must it be proven that the information constitutes a trade secret, but also that the defendant has committed infringement, which often occurs in a covert environment.

II. Key points of contention

Firstly, the proof of confidentiality requires demonstrating that the information is not known to the public and has not been publicly disclosed. Secondly, the adequacy of confidentiality measures, including a combination of systems, agreements, and technical means. Thirdly, the proof of infringement and the possibility of contact, including the defendant's opportunity for contact and the consistency of the information. Fourthly, the determination of the amount of losses and profits, involving the rights holder's losses, the infringer's profits, or a reasonable multiple of the licensing fees. Fifthly, the application of interim relief, including pre-litigation injunctions and preservation of actions.

III. Professional analysis by Henglue Law Firm

The key to commercial secret cases lies in the fact that "the chain of evidence precedes litigation". In practice, we usually advise rights holders to proceed in three steps: Firstly, establish internal procedures to comprehensively sort out the carriers and scope of trade secrets, clarify the key points, and preserve R&D and operation records; Secondly, obtain external evidence by notarizing the purchase of infringing products, notarizing infringing promotional materials, and extracting electronic data to fix the infringing acts, and if necessary, compare the consistency of information through technical means; Thirdly, take legal action by applying for injunctive relief to stop infringement in a timely manner, and report to the market supervision and management department or file a lawsuit. It should be noted that if the specific content and scope of trade secrets are not clearly defined in litigation, the claim is often not supported, so the definition of key points is a core task. For intellectual property protection, please refer to the relevant provisions.Intellectual property protection and corporate law; Those involving non-compete clauses and labor relations can be combined togetherLabor arbitration and work-related injury compensationAndBusiness and contract disputes in enterprises.

IV. Practical suggestions and legal basis

According to Article 9 of the Anti-Unfair Competition Law of the People's Republic of China (amended in 2019) regarding the definition of trade secrets and infringement acts, Article 17 regarding the amount of compensation, Article 32 regarding the transfer of the burden of proof, the provisions of the Civil Procedure Law of the People's Republic of China (amended in 2023) regarding evidence preservation and behavior preservation, the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trials of Civil Cases Involving Infringement of Trade Secrets (implemented in 2020) regarding confidentiality, confidentiality measures, and infringement determination, as well as the Labor Contract Law of the People's Republic of China (amended in 2012) regarding confidentiality obligations and non-compete clauses, it is recommended to follow four steps: First, define the scope and key points of trade secrets, form a list and fix the carrier; Second, sort out the evidence of confidentiality measures, including confidentiality agreements, authority settings, and confidentiality systems; Third, obtain evidence of infringement acts through notarization, electronic data fixation, etc., and apply for evidence preservation or behavior preservation in a timely manner; Fourth, report to the market supervision and management department or file a lawsuit with the court, claiming to stop infringement and compensate for losses. For intellectual property disputes, you can refer to the above-mentioned provisions.Intellectual property protection and corporate law; Those involving employee resignation and confidentiality obligations can be combined togetherLabor arbitration and work-related injury compensation.

5. Henglu Law Firm's Reminder

To protect trade secrets, first define them and then gather evidence. Three reminders: First, don't make a general claim that "all technical materials are trade secrets". You must specify the specific confidential points and carriers. Second, don't ignore the evidence of confidentiality measures. The combination of systems, agreements, and technical means is the basis for identifying trade secrets. Third, don't delay after discovering infringement. Evidence is easily lost, and timely preservation is essential to fix the facts.Beijing Henglu Law FirmIt is recommended that enterprises establish a confidentiality system and authority management in their daily operations, so as to lay a solid foundation of evidence for future rights protection.

VI. Frequently Asked Questions

Q1: If a trade secret is stolen, how can evidence be collected?

Regarding confidentiality, confidentiality measures, and evidence collection of infringements: fixed carriers and a list of sensitive points, organizing confidentiality agreements and permission settings, proving infringements through methods such as notarized purchases, notarized web pages, and electronic data fixation, and, if necessary, applying for evidence preservation and behavior preservation.

Q2: What materials do I need to prepare?

The list of trade secrets and their carriers, confidentiality agreements and confidentiality systems, access rights and log records, R&D and operational records, infringing products or promotional materials, evidence of employees' departure and employment at new companies, and the basis for calculating losses or profits.

Q3: How much does it cost to protect one's rights?

The litigation fees shall be paid according to the standard amount of the claim; the notarization fees, appraisal fees, and electronic data evidence collection fees shall be charged according to the actual amount incurred. The fees for hiring lawyers shall be charged either as a percentage of the amount of the claim or on a per-stage basis, subject to the provisions of the written power of attorney contract.

Q4: How long does it take from protecting one's rights to obtaining the final result?

Cases subject to simplified procedures are generally concluded within three months, and those subject to ordinary procedures are generally concluded within six months; applications for preservation of evidence can be ruled on more quickly; and the timeframes for cases involving technical appraisals or appeals will be extended accordingly.

Q5: What should I do first?

First, define the specific scope and confidentiality of trade secrets, form a list and fix the carrier; then sort out the evidence of confidentiality measures, initiate notarization or electronic data fixation for infringement, and then evaluate the timing of applying for preservation and suing.

The above content is based on the compilation of judicial practices in the Beijing area. The facts of individual cases and the jurisdiction of the court may affect the conclusions. Welcome to consult Henglue Law Firm for specific cases.

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

Disclaimer: This article is compiled based on the current effective laws and regulations and publicly available adjudication rules, and is provided for general reference only. It does not constitute a formal legal opinion on 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 time.