(By You Yunting) According to reports, in February 2014, Shanghai No.1 Intermediate People’s Court approved plaintiff NOVARTIS’s application requesting the court to order an injunction ruling so as to protect its legal rights and interests in a trade secret litigation.

According to reports, NOVARTIS claimed that the defendant should not disclosure, use or allow another party to use the 879 documents on its trade secret lists that shall keep secret.

For intellectual property infringement, China’s supreme People’s Court may also set a temporary injunction on judicial interpretations of the Patent Law, Trademark Law and Copyright Law; we have previously provided posts discussing related systems in other areas of intellectual property law, such as patent preliminary injunction, copyright injunction and litigation injunction. With regard to trade secrets, however, no particular injunction is set on judicial interpretations of the Anti Fair Competition Law.

Therefore, the court utilized litigation preservation and the injunction system to settle this issue, thus being the first litigation preservation case since the Civil Procedure Law was effective on January 1, 2013. Our website once introduced the conditions and procedures about how to apply for evidence preservation for IPR trials in China, and furthermore analyzed the court’s examination standard of evidence preservation. Following are the abstract from previous posts. If you are interested in the IPR preservation, please click the link.

1. The condition of evidence preservation

(a). the preliminary evidence to the infringement;

(b). evidences preserved must be related to the case;

(c). unavailable to the right owner objectively.

2. The procedure of evidence preservation

Although the law provides that courts can actively start an evidence preservation procedure, in practices, it is generally launched on the application. The details of the application are as follows:

(a). the application period

The Civil Procedure Law provides that suit participants can apply for the preservation during the trial which however shall not be made later than 7 days before the end of the evidence period. But the Copyright Law stipulates that, for the purpose of preventing the act of infringement and under the circumstances where the evidence could be lost or is difficult to obtain afterwards, the copyright owner or copyright-related right owner may apply to a people’s court for evidence preservation before he initiates an action.”

(b). the way of preservation

As provided in Article 24 of the Several Regulations on the Civil Trial Evidences by the Supreme People’s Court:

“the people’s court can making seizure, photographs, recording, video, replication, identification, inspection records and other methods according to the specific circumstances when preserve evidences”.

On the application of evidence preservation, the applicant shall clearly state the methods of preservation.

(c). guarantee

In the event of institute an evidence preservation procedure, the court would request the applicant to provide a guarantee. At the same time, if the applicant refuses to provide a guarantee, the court may dismiss the application. As for the guarantee amount, according to our experiences, some courts will only require about 30% of the property as the guarantee, while most courts will demand a 100% guarantee. At the same time, there are a lot of professional guarantee companies in China to provide the aid in guarantee

3. The examination standard of evidence preservation

In general, the courts review and deal with the plaintiff’s application for evidence preservation from the following aspects:

(a). to require the plaintiff define the details of the trade secrets they claim and fix the evidences;

(b). the plaintiff shall provide the primary evidences to the defendant’s infringement;

(c). the scope of evidence preservation shall be in accordance with claims;

(d). the corresponding guarantee is requested;

(e). to define the contents of the financial account applied for preservation and take measures of seizing and sealing up prudently.

 Lawyer Contacts

You Yunting：86-21-52134918  youyunting@debund.com/yytbest@gmail.com

Disclaimer of Bridge IP Law Commentary

Short Link: