Demystifying China’s trade secrets law in action: a statistical analysis
Yang Chen Assistant Professor, School of Law, City University of Hong Kong

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This article attempts to conduct a detailed empirical study on trade secrets litigation in China. In a nutshell, using 33 coding criteria, this article studied 2810 judicial documents published between 2013 and 2021 related to trade secrets litigation. Of the 2810 documents, 745 concerned substantive trade secret issues, with 885 trade secret claims addressed by Chinese courts. The article mainly aims to fill two research gaps in the current literature. First, it is unclear whether, during the past two decades, China indeed provided inadequate trade secrets protection in practice because of its ‘defective’ statutes, as alleged by the US government. Empirical evidence is needed to test whether the previous US criticisms conformed with the working situation of China’s trade secrets litigation. Second, the enforcement level of trade secrets law in books in China remains a myth. The argument that China has adopted a strict trade secret law in books similar to the US has little practical value if China did not enforce the trade secrets law in practice. Empirical evidence is required to demystify the enforcement situation of trade secrets law. This article, thus, fills these two gaps by presenting empirical findings on trade secrets litigation from 2013 to 2021 in China.

Abstract

This article attempts to conduct a detailed empirical study on trade secrets litigation in China. In a nutshell, using 33 coding criteria, this article studied 2810 judicial documents published between 2013 and 2021 related to trade secrets litigation. Of the 2810 documents, 745 concerned substantive trade secret issues, with 885 trade secret claims addressed by Chinese courts. The article mainly aims to fill two research gaps in the current literature. First, it is unclear whether, during the past two decades, China indeed provided inadequate trade secrets protection in practice because of its ‘defective’ statutes, as alleged by the US government. Empirical evidence is needed to test whether the previous US criticisms conformed with the working situation of China’s trade secrets litigation. Second, the enforcement level of trade secrets law in books in China remains a myth. The argument that China has adopted a strict trade secret law in books similar to the US has little practical value if China did not enforce the trade secrets law in practice. Empirical evidence is required to demystify the enforcement situation of trade secrets law. This article, thus, fills these two gaps by presenting empirical findings on trade secrets litigation from 2013 to 2021 in China.

1 INTRODUCTION

China’s trade secrets law did not develop naturally in its own industry; it resulted from US–China trade negotiations. Retracing each moment when China introduced its trade secrets system and amended provisions to strengthen protection, my previous historical study found that every legal amendment adding stricter rules to enhance legislative protection levels followed US ‘recommendations’.1 From 1993 to 2020, the United States Trade Representative (USTR) used its strong Special 301 mechanism and associated trade secrets protection with trade relations to ‘persuade’ China to adopt a restrictive trade secrets protection regime similar to that of the US.2 The US government’s pressure was backed by industry members, alleging that they faced problems litigating trade secrets cases in China. In their public comments to the US government, these members provided detailed criticisms of China’s trade secrets regime and made suggestions to ‘improve’ Chinese law to provide more adequate protection.3 The US government incorporated these views and criticisms into the Special 301 reports and utilized the US–China trade relations to ‘persuade’ China to fully account for US industry’s opinions in its legal amendments to the trade secrets system.4 In almost two decades, China’s trade secrets law has rapidly advanced from mere contractual protection to rigid intellectual property (IP) protection due to the US pressure. China’s current trade secrets system arguably provides a similar level of protection to US law.5 While the development and the up-to-date status of China’s trade secrets law in books were unveiled clearly in my previous study, some questions remain concerning the law in action. First, it is unclear whether, during the past two decades, China indeed provided inadequate trade secrets protection in practice because of its ‘defective’ statutes, as alleged by US industry members. Empirical evidence is needed to test whether the previous US criticisms conformed with the working situation of China’s trade secrets litigation. Second, evidence of the enforcement level of trade secrets law in China is needed. Although the law in books of trade secrets in China has extended sufficient (or too restrictive, as argued by some studies6) protection similar to US law, the level of legal enforcement in China may remain an ongoing issue in trade secrets protection.7 Otherwise, the argument that China has adopted a strict trade secret law in books similar to the US has little practical value if China has not enforced the trade secrets law in practice. These two questions become the locus of this statistical study.

In a nutshell, this article attempts to conduct a detailed empirical study on trade secrets litigation in China from 2013 to 2021. Its main purpose, echoing the aforementioned two questions, is to provide readers with an understanding of the working situation of China’s trade secrets law in practice and to empirically test whether previous Chinese trade secrets law in action truly did not adequately protect owners, as the United States alleged.8 This article presents a statistical analysis of 2810 judicial documents concerning trade secrets litigation in China published from 2013 to 2021. Of the 2810 documents, this study coded 745 documents in detail where substantial issues about trade secrets protection were decided; the remaining documents decided only procedural issues. The detailed coding scheme for the 745 substantive documents contains 33 criteria, such as whether trade secrets were established and whether each trade secret requirement was satisfied.9 This statistical analysis of trade secrets litigation under such a nearly exhaustive coding scheme can help present a comprehensive picture of how the trade secrets system in China has worked in action. This article is organized into four main parts. Part 2 gives the background and methodology. Parts 3 and 4 present the data and relevant analysis of what the data can add to understanding Chinese trade secrets law and practice. Part 5 concludes the article and proposes directions for future theoretical and empirical studies.

2 LITERATURE REVIEW AND METHODOLOGY

2.1 Insufficiency of empirical work on trade secrets in China

A new statistical study on trade secret litigation is needed to answer the aforementioned questions identified because empirical studies on the field are limited in China. The only available statistical analysis on trade secrets is the empirical report written by the BHPC IP Tribunal Research Team.10 The main purpose of that study was to explore how Chinese courts decided trade secrets cases between 2013 and 2017 and to clarify some remaining uncertain legal application issues surrounding the trade secrets law.11 That work was the first and only empirical study on trade secrets litigation in China, and it is credible because it was a product of a BHPC study group.

By searching for cases on China Judgments Online (CJO), the unified case documents publication platform in China,12 the BHPC study reviewed 338 judgments on trade secrets litigations from 2013 to 2017 and made some interesting empirical findings.13 First, it found that trade secrets disputes occurred more frequently in economically developed provinces, with Guangdong, Beijing, Shanghai, Zhejiang, and Jiangsu ranking as the first five.14 Second, their results demonstrated that the majority of trade secrets concerned business secrets rather than technical secrets. To be more specific, only 22 percent of cases in their study were about technical trade secrets, while the percentage for business trade secrets cases was 63 percent.15 Third, plaintiffs lost in 65 percent of cases, that is, defendants had higher success rates than plaintiffs.16 The main reason identified for this failure in their study was that trade secrets alleged in those cases did not satisfy the legal requirements.17 The remaining parts of their study mainly dealt with theoretical analysis on trade secrets elements, misappropriation conducts, and procedural issues.18

The BHPC study can only provide some limited empirical insights due to four methodological shortcomings. First, when searching for data in the CJO, the report limited its search to judgments and excluded other case documents,19 such as rulings. Though rulings often concern procedural issues, some retrial decisions, where substantial trade secrets issues are reviewed, are rendered under rulings. That study neglected retrial decisions, making its empirical findings incomplete. Furthermore, rulings on procedural issues surrounding trade secrets litigation have their own empirical value. For instance, orders preserving evidence before trials and preliminary injunctions are granted under rulings. Second, the study does not specify the researchers’ search criteria to locate trade secrets cases in the CJO.20 As elaborated in the following parts, the CJO has different search functions to locate trade secrets cases. Because different search terms and methods can return different results from the database, researchers should try various search methods to make their dataset more complete. It remains unknown how complete the searches were in this study as no search methods are discussed. Third, the BHPC study did not analyze the data judgments thoroughly. Quantitatively, the researchers only coded and analyzed a limited number of issues surrounding trade secrets litigation.21 Only the issues of territories of courts, types of trade secrets, and outcomes of cases are discussed,22 leaving many equally important issues untouched (eg, the nature of misappropriators, the types of remedies granted). Qualitatively, even within a particular issue of trade secrets disputes, that study did not explore the subtopics in depth. For instance, the report abstractly presents statistics on how many cases failed because the alleged trade secrets did not satisfy legal requirements, without specifying which requirements they failed.23 Last, that study is outdated because its timeframe stops in 2017.24 Cases from 2018 to 2021 – when legal amendments were enacted and effective – are not addressed. These limitations affect this report’s value in introducing the law in action regarding trade secrets in China. This article, therefore, intends to provide a more comprehensive empirical study on trade secrets litigation in China, supplementing the historical study and testing the questions.

2.2 Methodology

2.2.1 Database and search methods

This analysis used the same database to search for case documents as the BHPC study – the CJO. Created in 2013, the CJO is a unified judicial documents publication database maintained by the PRC Supreme People’s Court (SPC).25 Chinese courts should publish almost all judicial documents in effect, including judgments, rulings, decisions, and notifications, on the CJO.26 Judicial documents concerning national secrets, juvenile crimes, divorce and alimony, and civil mediation are exempt from the publication requirement.27 For exempt documents, courts should list the case number, decision date, and reasons for exemption in the CJO.28 At the time of writing, there are 130 519 112 judicial documents on this database.29 The CJO can provide researchers with valuable judicial documents to conduct empirical studies.

The CJO offers various search functions, including searching judicial documents by case name. Searching a specific term using the case name search function will return all judicial documents whose names contain this term. In China, the names of judicial documents for trade secrets cases typically include the term ‘商业秘密 [trade secret]’. Some courts may divide trade secrets into two types when writing the names of judicial documents issued: ‘经营秘密 [business trade secret]’ and ‘技术秘密 [technical trade secret]’. Considering these standardized terms used in naming judicial documents, this study conducted three types of searches and combined all results to form a more complete final dataset. The terms ‘商业秘密 [trade secret]’, ‘经营秘密 [business secret]’, and ‘技术秘密 [technical secret]’ were searched using the case name search function in the CJO.30 The time frame of searches was limited to 2013–2021 (the studied period). The case type was also limited to civil and commercial cases, excluding criminal and administrative cases because this article only intended to study private litigation.

Most results from these searches are judicial documents about trade secrets. Some are false results because the names of judicial documents concerning technical trade secrets transfer or licensing contract disputes also contain the term ‘技术秘密 [technical secret]’. Thus, this study filtered out these results before coding the documents in detail. After filtration, 2810 case documents were left in the dataset: 1863 rulings, 748 judgments, 152 civil mediation judgments, 19 notifications, and 28 other documents without a specified type (see Figure 1). These case documents became the initial dataset for this empirical study.

Figure 1
Figure 1
Case document type

Citation: Queen Mary Journal of Intellectual Property 13, 2; 10.4337/qmjip.2023.02.03

2.2.2 Coding of case documents

Compared to the previous study by the BHPC, this article used a more comprehensive coding scheme to analyze the case documents. Drawing insights from the empirical studies on trade secrets litigation in the United States31 and the BHPC’s work, this study coded case documents according to 33 criteria that may interest scholars and practitioners in the field. Details about these criteria are provided in the codebook in Appendix A. The final dataset was formed after this detailed coding process.

Apart from the coding criteria, there are some special points to note about the coding for this study. One point is that this work divides the dataset into three types. The first dataset (dataset 1) is the coding results of all case documents collected, including decisions on procedural issues or substantive issues about trade secret disputes. The second dataset (dataset 2) is the coding results for case decisions where substantive issues of trade secret disputes were decided. Dataset 2 is the primary dataset from which the empirical results are drawn because those case decisions contain the most criteria of the coding scheme. The third dataset (dataset 3) is based on dataset 2 but makes some extensions and limitations. Rather than focusing on case decisions, dataset 3 focuses on the types of trade secrets disputed within each case decision in dataset 2. For example, if a case decision in dataset 2 concerned two types of trade secrets, such as when the plaintiff asserted protections for internal and external business trade secrets, this study coded these two types of trade secrets separately (in separate and parallel rows) with regard to whether they satisfied trade secrets requirements (coding criteria 12–1932) in dataset 3. Therefore, dataset 3 contains only the coding results for criteria 12–19 but treats different types of trade secrets within a case decision separately concerning these criteria. Such arrangements can inform us about the legal treatments for each type of trade secret in Chinese litigation.

Another point concerns the treatment of multiple case decisions for one dispute. The datasets may contain several related case decisions for one trade secret dispute, such as the first instance decision, appeal decision, or even retrial application decision. The question is how to treat these decisions related to the same dispute. This study did not link these decisions; instead, it treated them as separate decisions.33 Each court writes its own reasoning and decision in the case document, so by coding each decision separately, this study can have a full picture of how each court applied trade secrets law in practice. This approach admittedly suffers from some downsides. By law, the CJO only publishes decisions that are in effect.34 A tricky question relates to the treatment of decisions later overruled. Chinese courts do not have unified rules for publishing overruled decisions; some choose to publish most of them, while others refrain from publishing any.35 The upshot is that by treating each decision separately, this study may undercount a number of overruled decisions. This limitation does not distort the data analysis significantly. There is no selection bias in the publication of these decisions; the courts consistently choose what to publish based on their local rules rather than decision type (eg, decisions favorable to plaintiffs).36 The empirical results are not distorted towards any side despite this limitation. Another disadvantage lies in double or triple counting results from different proceedings for one dispute. Such an occurrence does not distort the results. This study is not concerned with how many trade secrets disputes happen in China; instead, it focuses on how courts decide trade secret issues in each decision or proceeding. This approach conforms with the purpose of this article rather than twisting results. One result that could be distorted is the final win/lose rates for plaintiffs because this article does want to calculate how frequently plaintiffs can win their cases. Therefore, this article will account for this potential distortion when reporting particular results.

2.2.3 Limitations of the methodology

There are a few other limitations to acknowledge. Although the searches in this study tried to locate every case document related to trade secrets, the dataset cannot include all case documents issued from 2013 to 2021. One reason is that some courts may not adopt standardized case document names when issuing their decisions. For example, during the coding process, this study found that some case document names included ‘不正当竞争 [unfair competition]’ rather than the previously mentioned three terms. Certain courts may make this mistake because trade secrets disputes are a subsection of unfair competition disputes in China.37 It is nearly impossible to add the results from another search because doing so will give too many false results that are hard to filter out. Case document names relating to other unfair competition disputes, such as commercial bribery and false advertising, also contain the term ‘不正当竞争 [unfair competition]’.38 It is not worth reading these results one by one to determine whether a trade secrets dispute is involved. The limitation, however, is insignificant. The term ‘unfair competition’ is an abstract level cause of action, while the terms ‘trade secret’, ‘technical secret’, and ‘business secret’ are specific causes of actions within ‘unfair competition’. The SPC requires that courts state the cause of action on a specific level rather than an abstract level.39 Courts should use ‘trade secret’ or other specific causes of action rather than ‘unfair competition’ when determining and including the cause of action in the case document name.40 Thus, it can be inferred that the number of trade secrets cases whose names do not include the three standard terms (specific causes of action) should be limited.

Other limitations originate from problems with the CJO – no database is perfect. First, though legally required, there is no guarantee that courts will publish every decision on the database. The reasons for not publishing vary and are unpredictable. It is also unknown how quickly courts will publish these decisions. Courts can delay publication. For example, first instance decisions are not published until the appellate court renders its decisions.41 Therefore, it is likely that this study missed more recent decisions because of the time lag. Meanwhile, as aforementioned, courts are also allowed to conceal some decisions from public view, including those concerned with national secrets or deemed inappropriate to publish.42 For these decisions, courts are only required to publish the case number, decision date, court information, and reasons for exemption (basic case information instead of substantive content).43 The dataset contained 183 exempt decisions whose basic information is published according to the rule.44 Nevertheless, it is unclear whether courts would strictly follow the rule to publish basic case information for every exempt decision. Thus, it is likely that the number of exempt decisions is higher than 183 as some may never appear in the CJO. All these issues limit the function of the CJO, making the dataset of this study not complete enough to include every decision made by courts during the studied period. However, the dataset is already large enough to provide sufficient snapshots of how China’s trade secrets law works.

In addition, the law also exempts the publication of substantive content of civil mediation judgments; only basic case information must be published.45 The civil mediation system is unique in China.46 It is a judge-led settlement that can happen anytime during a proceeding.47 Judges who adjudicate the case will function as mediators out of the courtroom to persuade parties to settle.48 If the parties reach an agreement, the court will enter a civil mediation judgment based on the agreement, which is treated as equal to an ordinary judgment delivered by the courts.49 The substance of civil mediation judgments does not appear in the CJO, so the details of the settlements are unknown. In dataset 1, 152 decisions are civil mediation judgments on first instance disputes (141) and appeal disputes (11).50 It is inferred that the true number of civil mediation judgments could be higher because courts may not follow the rule to publish even basic case information for every mediation judgment. That civil mediation judgments are inaccessible does not harm this study’s substantive findings. The judgments do not contain judicial reasoning on trade secrets issues; instead, they contain litigation claims, case facts, and mediation outcomes.51 Thus, the missing content of civil mediation judgments will not affect the findings regarding how the courts apply trade secrets law. However, this study must address one point of civil mediation judgments when interpreting empirical results on substantive issues. Though the civil mediation judgments do not contain judicial reasoning, they still affect parties’ legal rights as plaintiffs can use mediation judgments to enforce any agreements embedded therein. Therefore, when discussing certain substantive issues, such as the success rates of plaintiffs, civil mediation judgments must be taken into account.52

3 TRADE SECRETS LITIGATION IN CHINA: OVERVIEW OF FINDINGS

Before delving into the substantive issues surrounding trade secrets litigation, where datasets 2 and 3 will be primarily relied on, this part provides an overview of the number of case decisions coded in dataset 1, the complete dataset. This part discusses coding criteria 1–8.53 Explanations for each coding criterion are provided with the corresponding empirical findings.

3.1 The number of decisions generally followed a linear trend until the COVID-19 pandemic

Criterion 6 requires the coding of the decision year of the documents in the dataset. The statistics of the decision year can tell us how many decisions are rendered each year in the datasets. The decision numbers by year are presented in Figure 2.

Figure 2
Figure 2

Decision numbers by year

Citation: Queen Mary Journal of Intellectual Property 13, 2; 10.4337/qmjip.2023.02.03

There is a roughly linear trend in the growth of decision numbers by year in the datasets, except for the last year. The numbers generally followed an upward linear trend between 2013 and 2020 and peaked in 2019. The year 2021, however, witnessed a sharp decrease of decision numbers, deviating from the linear trend, for which the most plausible reason is the COVID-19 pandemic. The pandemic significantly affected the case management and operations of Chinese courts. Local courts adopted arrangements to accommodate the pandemic, including extending trials if parties could not collect evidence or attend trials, tolling the statute of limitations if parties were prevented from asserting rights, and suspending in-person case filing services.54 Some courts even temporarily suspended all court proceedings when COVID-19 was spreading widely.55 In these ways, the pandemic may have affected case filings and court proceedings in 2020 and 2021, causing a significant decrease in numbers in 2021.

Another possible reason is the limitations of the CJO discussed in Part 2. There is a time lag between decision and publication dates. Although courts are required to publish all effective decisions on the website within seven business days, if these decisions are appealed, they will not be made public until the effective date of the appeal decision (within seven business days after the appeal decision comes into effect).56 Such delays can significantly extend the publication date of many first instance decisions. Therefore, there is a strong possibility that some decisions made in 2020 and many decisions made in 2021 are still pending publication (ie, not available online yet).

3.2 Most trade secret disputes happened in relatively more developed territories in China

Consistent with the findings of the BHPC,57 the statistics in this study show that the majority of trade secrets cases were litigated in relatively more developed territories in China from 2013 to 2021: Guangdong Province (16.9%), Shanghai (15.0%), Beijing (10.1%), Zhejiang Province (9.8%), and Jiangsu Province (9.1%). The courts of these five territories delivered more than 60 percent of the decisions during the studied period. The findings remain the same when only calculating the percentage of first instance decisions delivered by the courts of these territories. This study separated the cases decided by the SPC and other Beijing courts. When computing the percentage numbers of Beijing courts’ decisions, this study did not include the SPC’s case documents; although the SPC is in Beijing, it takes cases from all other territories.58 Thus, it is reasonable to treat them differently. However, this did not change the findings because even after filtering out the SPC’s decisions, Beijing was still among the five territories where trade secrets disputes were most frequently litigated. Table 1 summarizes these findings.

Table 1

Decision numbers of selected provinces & cities, 2013–2021

Table 1

Note: a. In computing the 95% confidence interval for percentages, the parametric test is used because the sample size is large enough. All subsequent calculations for 95% CI rely on the parametric test if not specifically noted.

4 TRADE SECRETS LITIGATION IN CHINA: SUBSTANTIVE FINDINGS

Besides the basic case information discussed above, this study has put (relatively) more focus on coding the substantial issues of trade secrets litigation, which may interest scholars and practitioners. Coding criteria 9–33 dealt with the particular subject of how courts applied trade secrets law in litigation. This part presents the main empirical results of this study and explores how the trade secret law was enforced during the period. These findings can answer this study’s research questions of whether Chinese courts truly disfavored trade secrets protection for owners in practice, as alleged by the United States, and adopted arbitrary standards in enforcing the law in books in litigation. Each coding criterion mentioned in this part is explained, along with the empirical findings.

4.1 Alleged misappropriators’ identities

4.1.1 Courts consistently applied Chinese trade secrets law against nonbusiness operators

The business operator requirement attached to trade secrets protection in China was among the major criticisms of the United States over the past two decades.59 The USTR Special 301 Reports published in 2014 and 2018 alleged that China’s trade secrets law did not apply to nonbusiness operators, including individuals.60 In its 2017 amendments to the Anti-Unfair Competition Law (AUCL) and bilateral exchanges with the United States, China clarified that its trade secrets law did apply to nonbusiness operators, especially employees.61 Ignoring this clarification, the United States urged China to add a new provision to the law in its 2019 amendments that explicitly lists individuals and other entities as potential infringers.62 Thus, a question remains: did courts in China apply trade secrets law only to commercial entities rather than individuals or other entities? Because industry members’ claims backed US pressure,63 it is valuable to explore whether information holders truly experienced obstacles to litigating in China caused by the business operator requirement.

Coding criterion 9 allows us to explore defendants’ information and see how many decisions were against individuals rather than business operators. Statistics show that, before the 2019 amendments to the AUCL, 88.5 percent of the first instance, appeal, and retrial decisions delivered by Chinese courts between 2013 and 2019 were against individuals (including when an individual was a defendant). The overall percentage in 2020 and 2021 remains constant at 89.8 percent. Combining the data before 2019 and after 2019, 88.8 percent of all first instance, appeal, and retrial decisions were against individuals. The proportions of individual decisions rendered each year during the studied period are stable, with a mean annual percentage of 88.8 percent. The one-sample t-test shows that the difference between the mean percentage of individual decisions from 2013 to 2019 and from 2019 to 2021 is not statistically significant (t(6) = −2.183, p = 0.072).

Two findings can be drawn from these statistics. First, there were many trade secret decisions each year where the alleged misappropriators were individuals, even before the 2019 legal change. Indeed, a majority of decisions during that period were concerned with individual misappropriators. Second, the 2019 legal change regarding China’s trade secrets law’s application to individuals does not significantly change the percentage of decisions against individuals in practice. The percentages remain firmly stable, accounting for nearly 90 percent of all first instance, appeal, and retrial decisions issued each year. Previous US criticisms about China’s trade secrets law’s limited scope of covered actors were greatly misplaced. It is uncertain why in previous years US industry members reported to the USTR difficulties in trade secrets litigation in China caused by the business operator requirement.64 Their criticisms run afoul of the empirical results here.

Table 2 summarizes these findings. Table B.2 in Appendix B summarizes detailed numbers and percentages of individual cases for each year.

Table 2
Percentage of decisions against individuals, 2013–2021
Table 2

Note: a. Percentage number of the whole studied period (2013–2021); the same for all similar uses in forthcoming tables below.

4.1.2 Most alleged misappropriators are someone the trade secret owner knows

A related finding is that most of the alleged misappropriation in Chinese trade secrets litigation was associated with someone the trade secret owner knew rather than nonaffiliated third-party strangers. Coding criterion 10 gives us the identities of all misappropriators alleged by plaintiffs. Among all first instance, appeal, and retrial decisions that were not withdrawn (dataset 2), more than 90 percent of decisions delivered concerned affiliated parties as alleged misappropriators, including employees or partners. Specifically, employees were listed as potential misappropriators in more than 80 percent of decisions, with a mean annual percentage of 83.6 percent. In sharp contrast, only 33 decisions in total (4.4%) during the studied period addressed trade secret misappropriation by unrelated third parties. Meanwhile, using the data collected per coding criterion 11 (whether the prior employee started their own business), this study finds that among all these employee-related decisions, more than 45 percent were against employees who started their own businesses, with a mean annual percentage of 48.2 percent.

Tables 3 and 4 summarize these findings. Table B.3 in Appendix B summarizes detailed numbers of affiliated party cases for each year.

Table 3
Percentage of decisions by identities of misappropriators, 2013–2021
Table 3
Table 4
Percentage of decisions against affiliated parties, 2013–2021
Table 4

Notes: a. Overall percentage among all employee-related decisions. b. Overall percentage among all decisions in dataset 2. c. Mean percentage among all employee-related decisions. d. Mean percentage among all decisions in dataset 2.

These statistical findings echo the conventional propositions that most trade secrets disputes involve prior employees.65 However, more apt to this study’s purpose is this finding’s confirmation of the potentially significant impact of the trade secrets law on employee mobility. Because most disputes in China occur in the employer–employee context, it can be inferred that the strictness level of trade secrets law in China can critically affect employee mobility. The danger of a too restrictive a trade secret regime impeding local industry development by preventing knowledge spillovers between incumbents and startups is apparent. Many scholars have consistently emphasized the importance of knowledge spillovers between established entities and new market entrants, using Silicon Valley as a typical example.66 They argue that too strict a trade secrets law can harm such knowledge spillovers and benefit incumbents at the expense of newcomers, which runs afoul of a healthy ecosystem for regional development supporting startups.67 The statistical results support these propositions as more than 40 percent of employee-related decisions concerned litigation against new businesses started by these employees. It is acknowledged that preventing misappropriation through strict trade secrets law can preserve incentives to innovation and facilitate productive efficiency that benefits industry development as well.68 However, a too stringent trade secrets law that unjustifiably harms cumulative innovation and employee mobility by preventing knowledge spillover is not an optimal regime. Since the statistics here demonstrate a high percentage of trade secrets litigation against employees, it is highly likely that a too restrictive regime would come with high costs through deterring job-hopping or startup entrepreneurship that can outweigh its benefits. Therefore, together, the theoretical propositions with the empirical results here can serve as a wake-up call for legislators and scholars in China that they should avoid adopting an overly restrictive trade secret law. No efforts should be spared to reexamine the current system to ensure that Chinese law has maintained a sound balance in its trade secrets rules and accounted more for the needs for healthy local industry development.

Moreover, the statistical findings in this study partially run counter to the previous US insistence that Chinese law significantly failed to address trade secrets cyber theft by unrelated third parties. Before China added cyber theft as misappropriation conduct in the 2019 AUCL, the USTR and US industry members often criticized China for failing to address cyberattacks as potential means to misappropriate trade secrets.69 The statistics, however, show that unrelated third-party misappropriation only happened in less than 5 percent of cases this study coded. Therefore, the prior concerns of the United States over cyber thefts by unrelated parties in China may be exaggerated, neglecting actual litigation situations. This finding again casts doubt on the true purpose of the US government and its industry members’ continuous efforts to urge China to adopt an increasingly strict trade secret protection regime.

4.2 Trade secret types and requirements

Coding criteria 12–19 deal with the information about trade secret issues decided in coded judicial documents. These criteria allow me to explore the types of trade secrets litigated in China and the courts’ application of trade secrets law to decide whether each type of trade secret alleged satisfied the legal requirements. This part deals with courts’ decisions on trade secrets requirements. Dataset 3, which codes each type of trade secret within a decision separately,70 is used to make statistical findings.

4.2.1 Business information, especially client/customer lists, was the most litigated trade secret type

Trade secrets law is often argued to have a much broader scope of subject matter – every piece of information can receive trade secrets protection as long as it satisfies the relevant requirements.71 An empirical study on US federal trade secrets cases shows that most litigated trade secrets were evenly divided between business and technical information.72 In contrast, a study on US state courts shows that business information was more frequently litigated than technical information.73 It is interesting to see whether trade secret litigation in China differs from the United States. According to coding criterion 12, each trade secret claimed by plaintiffs in decisions in China was classified into different types. The statistical results show that client/customer lists appeared in more than 60 percent of case decisions.74 Other business information, such as internal strategies or external supplier information, accounted for around 22 percent.75 Taken together, over 80 percent of trade secret decisions delivered during the studied period concerned business trade secrets. In contrast, technical trade secrets (including technical information, formulas, and software programs) appeared in around 35 percent of cases, with a mean annual percentage of 36.5 percent.

Table 5 summarizes these findings. Table B.4 in Appendix B summarizes detailed numbers for each year.

Table 5
Percentage of decisions by trade secret, 2013–2021
Table 5

Note: a. Because each decision may concern multiple types of trade secrets, the total percentages for this column exceed 100%.

Trade secrets litigation in China is more akin to US state litigation than federal litigation in three ways. First, all three studies confirm that most cases concerned business or technical information. There were a limited number of cases concerning other types, such as combination trade secrets or negative know-how trade secrets, in both Chinese and US litigation.76 From 2013 to 2021, no decision in China ever touched on combination trade secrets or negative know-how trade secrets. Second, consistent with the US state litigation,77 Chinese cases have a higher proportion of decisions on business trade secrets and a lower proportion of decisions on technical trade secrets. Third, Chinese litigation differs from US state litigation in that among business trade secret cases, China has a higher percentage of decisions on client/customer lists than other business information. In contrast, US federal and state cases were more evenly divided between cases on customer lists and other business information.78 The high percentage of client list decisions in China has implications for the later analysis.

A client/customer list is a unique trade secret type that has slightly ‘different requirements’ from other trade secret types. To satisfy the secrecy requirements in the United States and China, client/customer lists should not be a mere collection of information about clients that are well known or easy to collect.79 Instead, the list should include specialized or deeper information about clients, such as special needs and personnel, to qualify as a trade secret.80 Furthermore, proving a stable purchasing history can be a strong sign that the list satisfies the requirements.81 Because there seem to be some detailed sub-requirements within the secrecy requirement for client/customer lists that appeared in nearly a half of Chinese cases, it is necessary, when appropriate in the statistical analysis, to separate client lists and treat them more cautiously. In so doing, we can know more accurately how Chinese courts have enforced trade secrets law in different kinds of trade secrets cases.

4.2.2 The practicability requirement seldom barred plaintiffs’ claims in China

Before the 2017 AUCL, China’s trade secrets law in books required parties to prove their information has practicability.82 The USTR and US industry members continuously targeted this requirement and argued that its existence made China’s trade secret protection inadequate.83 According to their views, the practicability requirement had barred many trade secrets claims in China, so it should be lifted as soon as possible.84 However, the statistics here demonstrate a surprising finding in the opposite direction – the requirement seldom prevented trade secrets claims. Out of 745 trade secrets decisions where at least one substantive trade secret issue was addressed (dataset 2), 390 applied the practicability requirement in establishing trade secret protection status. Nevertheless, only three of those decisions rejected trade secrets protection based on the practicability requirement. Two of the three briefly mentioned that the plaintiffs did not provide any evidence to prove the value and practicability of the trade secrets claim.85 There was no direct court reasoning rejecting the practicability of these trade secrets.86 The remaining decision expressly rejected the practicability of the information claimed.87 The court considered part of the information the plaintiff claimed was too simple to bring any value and practicability to holders.88 The court rejected this part of the information partly based on the practicability requirement.89 For the remaining information claimed in this case, the court did not use the practicability requirement to reject them.90

The threshold for satisfying the practicability requirement thus seems low. Information holders can satisfy this requirement easily in China by providing some evidence and proving their information is not overly simplistic. Although this study agrees with deleting this requirement because it has become redundant due to its low bar in practice, it is uncertain why the United States emphasized this requirement and claimed it was a critical element weakening trade secrets protection in China. The US government and its industry members seemed to criticize Chinese law for strategical or nonlegal purposes rather than due to defects in Chinese law.

4.2.3 The value requirement could be easily satisfied in a majority of decisions

In addition to practicability, a historical requirement in China, the first requirement this study coded was the value requirement. Trade secrets protection requires that holders can derive independent commercial value, either actual or potential, from keeping information secret.91 This requirement has a relatively low threshold – the value need not be great, just not trivial92 – and parties spend little effort contesting this requirement in the United States.93 Trade secrets litigation in China followed a similar pattern. Coding criterion 17 allows exploring whether a trade secret claimed in decisions satisfied the value requirement. Out of 885 trade secret issues decided in dataset 3, 458 (51.8%) addressed whether the trade secrets claimed satisfied the value requirement. Only 28 trade secrets claims (6.1%) were rejected based on the value requirement, and another six claims (1.3%) were partially94 rejected due to failing this requirement (some trade secrets within the claim satisfied the requirement while some did not). Combined, less than 8 percent of trade secrets claims95 fully or partially failed the value requirement, while more than 90 percent of claims passed the value bar.

If digging down into the specific reasons why this small portion of claims ‘failed’ the value bar, it can be seen that the value requirement expressly rejected an even smaller percentage of claims. Out of 34 claims where at least some trade secrets ‘failed’ the value requirement, only 14 trade secrets were considered truly not valuable. Examples of these trade secrets without commercial value include a single piece of information regarding an employee salary amount rather than the entire employee salary system,96 information about negotiations with potential clients rather than established stable transactional relationships,97 and some business statistical charts and tables without specific content.98 Apart from these ‘authentic’ trade secrets without commercial value, nine trade secret claims were held as failing the value requirement because plaintiffs did not provide evidence to show the value of the information claimed.99 In eight of these claims, no evidence was ever provided to prove any requirements of trade secrets. The remaining 11 claims did not satisfy the value requirement because the client lists did not contain specialized or deeper information.100 Strictly speaking, courts in these client list cases did not directly rule on value requirements because, as discussed above, having specialized or deeper information is a sub-condition for the secrecy requirement rather than the value bar.101 These client lists may satisfy the value requirement as long as they contain specialized information. In total, only 14 trade secrets claims (3.1%) truly failed the value requirement as courts explicitly held them to be nonvaluable.

That being said, the empirical result demonstrates that the value requirement sets a low bar that parties litigating trade secret claims in China can easily satisfy by providing some evidence. For client lists, plaintiffs need to prove that these lists embed specialized or deeper information and that there are established stable transactional relationships between plaintiffs and clients. Otherwise, courts may find these lists to be trade secrets without commercial value.

4.2.4 The secrecy requirement was not a rigid bar preventing protection

Unlike the value requirement, which is not a popular contested issue in trade secrets litigation, the secrecy requirement seems to receive more attention from litigating parties. This requirement comprises two sub-elements: not readily ascertainable (NRA) and not publicly available (NPA).102 Coding criteria 15–16 deal with questions of whether the claimed trade secrets satisfied the NRA and NPA requirements. Statistics indicate that litigating parties concentrated on disputing these two requirements. Out of 885 trade secret claims this article studied, courts addressed the NRA criterion in 613 (69.4%) and that of the NPA in 662 (74.9%). Courts were more likely to rule on the NRA and NPA issues than the value requirement.103 Each year, courts more frequently addressed the NPA than the NRA requirement.104 Therefore, the secrecy requirement, especially the NPA, received more attention in Chinese trade secrets litigation than the value requirement. Knowing how Chinese courts ruled on the secrecy requirement helps with seeing whether this requirement was ever a significant bar to trade secret protection in China.

Overall, the statistics demonstrate that more than 60 percent of trade secrets claims decided in China satisfied the NRA or NPA requirement. Only around one-third of trade secrets claims failed either requirement. Divided by year, on average, 66.2 percent and 61.7 percent of claims passed the threshold for the NRA and NPA requirements, respectively, each year; only 28.4 percent and 33.4 percent of claims failed them correspondingly. Combining both sub-requirements, more than 55 percent of trade secrets claims during the studied period satisfied the secrecy requirement, with an annual average percentage of 58.8 percent. Conversely, slightly more than 35 percent of trade secret claims failed the secrecy requirement. Accordingly, during the studied period, information holders litigating trade secrets claims in China were more likely to prevail on the secrecy requirement rather than be barred by the NRA or the NPA thresholds.

Table 6 summarizes these findings. Table B.5 in Appendix B summarizes detailed numbers for each year.

Table 6
Percentage of decided claims addressing the secrecy requirement, 2013–2021
Table 6

Note: a. Because each decision may concern multiple types of trade secrets, the total percentages for this column exceed 100%.

A further look at the specific reasons these trade secret claims failed the secrecy requirement can supplement the findings and analysis. Out of 186 trade secret claims that fully failed the NRA requirement and 230 ones that did not satisfy that of the NPA, 104 claims (55.9% and 45.2%, respectively) failed the requirement because they claimed client lists as trade secrets that courts held as not containing specialized client information or information of established stable transactional relationships with clients. According to the Chinese courts, such client lists, lacking deeper information or without establishing stable transactional relationships, would fail the secrecy requirement, consistent with the law in books in China. This also conforms with US law, which does not protect lists that lack specialized information about clients or previous purchasing history.105 Thus, they could pass the secrecy bar in China if these client lists included deeper information, such as specialized needs or personnel.

Furthermore, 19 claims did not satisfy either the NRA or NPA requirement because the plaintiffs did not specify the content of trade secrets during the litigation. In other words, holders did not identify trade secrets in dispute in these claims. Thus, it is understandable why courts rejected them. Meanwhile, 14 and 17 claims, respectively, failed the NRA and NPA requirements because holders did not provide sufficient evidence (or none at all) to prove that the information satisfied any trade secrets requirements. Only the remaining 51 claims (27.4% of failed claims, 8.3% of all claims addressing the NRA threshold) and 86 claims (37.3% of failed claims, 13.0% of all claims addressing the NPA threshold) failed the NRA and NPA test, respectively, because the secrets alleged there were truly held as readily ascertainable information or public information. Representative examples of public information held by courts include technical information disclosed due to patent applications,106 information published online,107 and information obtainable through public channels.108 Typical examples of information readily ascertainable include information that could be obtained through observing products in the market109 and information that could be collected through limited efforts.110 These discussions on the reasons for failing can prove that Chinese courts did not rule on trade secret issues arbitrarily but consistently with the law in books.

To summarize, the statistical findings and detailed discussions on the reasons for failing the NRA and NPA criteria prove that Chinese courts did not adopt strict standards for the secrecy requirement. Trade secret holders litigating in China whose trade secrets are not publicly available and not easily ascertainable are very likely to pass the secrecy standard so long as they identify their secrets and provide evidence. Likewise, secret holders who want to claim protection for client lists should work to prove the presence of specialized information in those lists as well as stable purchasing relationships, if any. Chinese courts enforced the law in books in practice; there is no clear sign that they disregarded extending trade secret protection to information owners.

4.2.5 Most information holders could satisfy the reasonable secrecy measures requirement

The last requirement for trade secrets protection is adopting reasonable measures to keep information secret. The US Uniform Trade Secrets Act (UTSA) requires trade secrets information to be ‘the subject of efforts that are reasonable under the circumstances to maintain its secrecy’.111 Its corresponding comment emphasizes the view of relative secrecy rather than absolute secrecy, stating that the courts do not demand ‘extreme and unduly expensive’ procedures to be taken.112 Similarly, Chinese law also only requires measures that are relative.113 The 2007 Judicial Interpretation114 and 2020 Judicial Interpretation115 enumerate some typical measures that may satisfy the requirement, including confidentiality agreements, restriction of access to certain persons, written policies or notices, computer-based or technical restrictions, physical-based protection, and labeling of confidential documents. Based on these judicial interpretations and the US empirical studies, coding criterion 23 specified 15 potential measures holders might use in practice. Moreover, to explore whether Chinese courts set a high threshold for this reasonable measures requirement, coding criterion 22 included information about whether holders prevailed on this requirement.

Statistics again show that the reasonable measures requirement seemed not to be a high threshold denying holders’ trade secret protection. Among all trade secret claims in dataset 3, 572 decisions addressed this requirement. Overall, 423 claims (74.0%) satisfied the requirement.116 Only 147 claims (25.7%) were considered not to take sufficient secrecy measures.117 Divided by year, on average, 75.7 percent of claims (SD = 9.5%) passed the threshold for reasonable measures each year, while only 24 percent of claims (SD = 9.3%) failed the requirement. Among all failed claims, the most common reasons that courts rejected them were lack of confidentiality agreements and no other measures taken to maintain secrecy (23 claims),118 too abstract confidentiality agreements or confidentiality policies that failed to specify what trade secrets they aimed to protect (42 claims),119 and failure to prove the existence of any measures (53 claims).120

Correspondingly, among all successful claims, 373 claims (88.2%) had confidentiality agreements in place with employees, third parties, or partners.121 From the statistics, it can be seen how vital confidentiality agreements are in Chinese trade secret litigation for passing the secrecy measures threshold. Most successful claims have written confidentiality agreements. The lack of such agreements or including only very abstract confidentiality clauses without specifying the scope can lead Chinese courts to err on the side of the defendants. Though confidentiality agreements played a significant role, they were not decisive. Most courts in failed claims held the requirement not satisfied because there was no secrecy clause and no other secrecy action in place.122 Other measures such as written policies on confidentiality,123 computer-based or technical protections,124 and physical-based measures125 also played an important role in successful claims. These equally importantly reasonable measures and the confidentiality agreements are examples included in the judicial interpretations. In other words, as long as information owners adopt reasonable measures based on recommendations in the judicial interpretations, Chinese courts are very likely to hold that their information satisfies the reasonable measures requirement. This outcome indicates that China enforced the law in books rather than adopting arbitrary and unpredictable standards of trade secrets litigation. Tables B.6 and B.7 in Appendix B summarize detailed numbers.

To sum up, Chinese courts did not adopt a very high bar for the secrecy measures requirement, and the majority of claims passed the threshold during the studied period. Also, they were more than willing to consider reasonable measures recommended in their judicial interpretations when ruling on this requirement instead of applying random standards. Likewise, the Chinese courts did not show any apparent bias against information owners when applying trade secrets law in action and generally enforced the law in practice.

4.2.6 Summary statistics

Although statistics for each trade secret requirement illustrate that information holders were more likely to satisfy each one separately in Chinese litigation, the final rate for satisfying all three conditions is relatively moderate. Overall, during the studied period, trade secrets in 49.2 percent of claims126 satisfied all three requirements and obtained protection status (the satisfying rate).127 The overall rate for failing at least one requirement and thus losing protection status is 50.8 percent (the failure rate).128 The overall percentages prove that courts in China were more prone to reject protection for trade secrets. However, the differences between the annual satisfying rates and failure rates are not statistically significant.129 Although overall rates show differences, these variations are by chance rather than systematic. There is no consistent pattern of Chinese courts rejecting more trade secret claims than approving them.

In addition, the statistics demonstrate that the association between trade secret types and satisfying rates is statistically significant.130 Indeed, more than 50 percent of technical trade secrets satisfied requirements131 and were more likely to receive trade secret protection status than client lists.132 Considering that client lists have more sub-requirements than other trade secret types, it is within expectations that they have lower satisfying rates, substantially lowering the overall rates due to their higher percentage. Thus, the difference between satisfying rates strengthens the proposition that there is no evident bias of Chinese courts in deciding trade secrets requirements. The differences between overall success and failure rates are not systematic, and there are differentiated satisfying rates for different types of trade secrets, with some over 50 percent and some under 50 percent, showing no clear biased pattern in Chinese courts. On the other hand, this proves that Chinese courts consistently applied the law in books in practice as they scrutinized client lists based on their corresponding sub-requirements, differentiating with technical trade secrets. Table B.8 in Appendix B summarizes detailed numbers of this summary finding.

4.3 Misappropriation and success rates

After establishing trade secrets status, there is one step left to win the case: proving that the defendants misappropriated trade secrets and responding to any defenses they may raise. This section presents statistics on how frequently plaintiffs in Chinese trade secrets litigation successfully proved misappropriation. This section also summarizes the success and failure rates for trade secrets decisions during the studied period.

4.3.1 In many decisions that addressed the misappropriation requirement, plaintiffs succeeded in their claims against at least one alleged misappropriator

Trade secret law does not prevent proper means to appropriate information even if it received trade secrets protection. The law only deals with misappropriation (using improper means to obtain trade secrets).133 There are usually two broad types of misappropriation: acquiring information using improper means such as theft, cyber intrusion, and bribery, and using or disclosing trade secrets in breach of a confidentiality duty.134 The former is associated with misappropriators unaffiliated with information holders, while the latter deals with affiliated parties who owe confidentiality duties to secret owners. Any third parties who know or should have known about these misappropriation conducts but still acquire, disclosure, or use trade secrets will be held jointly liable for trade secret misappropriation.135 Based on the law, coding criterion 20 deals with whether plaintiffs successfully proved the existence of misappropriation.

Of 745 case decisions where substantive trade secret issues were decided (dataset 2), 512 decisions addressed whether misappropriation conduct existed. Around 46.5 percent of decisions fully supported plaintiffs’ claims against all alleged misappropriators (win results),136 while 39.7 percent rejected all allegations against any misappropriators listed by plaintiffs (lose results).137 The remaining 14.3 percent approved plaintiffs’ claims against some alleged misappropriators but not all (mixed results).138 The mean annual percentages for these decisions are similar to overall percentages, with 48.3 percent (SD = 8.5%) winning claims against all misappropriators, 36.8 percent (SD = 12.0%) losing all claims, and 14.9 percent (SD = 5.2%) achieving partial victories. Indeed, if taking mixed results more seriously and combining them with the win results, plaintiffs in a majority of decisions succeeded in claims against at least one misappropriator.139 This study took a broad view of categorizing a decision as a mixed result. As long as one misappropriator alleged in the case was not held liable by courts, the study coded it as a mixed result. Furthermore, if courts considered that any part of the trade secrets was not misappropriated, the study coded it as a mixed result. However, some plaintiffs tended to list as many potential defendants as possible, even if some may not clearly engage in misappropriation.140 Indeed, many mixed decisions approved plaintiffs’ claims against several prior employees and/or third parties but only held some of them not liable (42 out of 71 mixed results).141 In several mixed result decisions, plaintiffs prevailed against parties affiliated with them but not some unrelated defendants (17 out of 71 mixed results).142 The remaining 12 decisions were coded as mixed not because plaintiffs failed to claim against any misappropriator; courts held that these defendants only misappropriated some trade secrets rather than all.143

From the statistics, it can be seen that even mixed results do not necessarily represent any courts’ disfavor in terms of protecting secret holders. Instead, courts in these mixed decisions extended trade secrets protection for plaintiffs against certain misappropriators. Also, more decisions during the studied period approved plaintiffs’ claims against all alleged misappropriators than entirely rejected their protection requests. For the misappropriation requirement, Chinese courts did not show any distaste for preventing trade secrets from being infringed. In contrast, courts approved plaintiffs’ claims against at least one alleged misappropriator in most decisions. Likewise, Chinese courts applied trade secret law in books and extended protection for secret holders. Table B.9 in Appendix B summarizes detailed numbers on misappropriation conduct.

4.3.2 China has overall success rates similar to the United States concerning trade secrets litigation

Last but equally intriguing are the overall results of trade secrets litigation in China – meaning, in how many decisions plaintiffs successfully won their claims and received legal remedies. The success rates here differ from the prevailing rates for each requirement previously discussed. Plaintiffs must satisfy all requirements mentioned above to win. The overall success rates have equally, or even more, meaningful values for this study. Coding criteria 24 and 25 deal with whether secret holders prevailed in their claims in the decision. If plaintiffs in a decision received remedies against trade secret misappropriation (at least one trade secret claim was supported, including partial victories and full victories), this study coded it as ‘Claims supported’. However, if no claim was ever supported and defendants in a decision were free from any award, this study coded it as ‘Claims rejected’.

Among 745 decisions (dataset 2), courts granted remedies against trade secret misappropriation for plaintiffs in 43.2 percent of decisions (support rate) and rejected all claims of plaintiffs in 56.8 percent of decisions (reject rate). Divided by year, on average, courts approved the plaintiff’s claims in 44.6 percent of decisions and rejected all claims in 55.4 percent of decisions each year during the studied period. Note, however, that these percentage numbers are subject to the double or triple counting limitations caused by the ‘not linking’ strategy of this study.144 There are 340 decisions that concern multi-proceedings, which risk the multi-counting problem. Among these decisions, higher-level courts affirmed 154 reject and 164 support results while reversing 16 reject and six support decisions. Thus, the chances for double or triple counting support and reject results are roughly similar.145 Accordingly, the multi-counting risks do not distort the support/reject rates significantly.

Regardless of the insignificant overcounting risks, though, at first glance, courts rejected claims in more decisions than they approved during the studied period. The differences between the annual percentages of decisions granting remedies and those rejecting claims are not statistically significant.146 Therefore, statistics did not show much systematic ‘preference’ of Chinese courts for denying trade secret protection over granting protection for information holders. The difference is likely due to chance rather than a consistent disfavoring attitude of Chinese courts every year. Meanwhile, one point to note is that even in the US state courts between 1995 and 2009, information owners only prevailed in around 41 percent of cases, while alleged misappropriators won in nearly 60 percent of cases.147 The number is similar for trade secret cases in US federal courts from 1950 to 2007, where owners prevailed on all claims or partial claims in 47 percent of cases but lost claims in 53 percent.148 Therefore, even in the US, trade secret owners did not prevail in the majority of trade secrets cases.

The difference between support and reject rates in China, thus, cannot represent any Chinese courts’ bias towards inadequate protection for secrets in practice. In addition, when calculating the overall support rates, civil mediation judgments should be considered. As introduced in Part 2, civil mediation judgments in China function as settlements between parties that are judicially recognized and enforceable. Obtaining civil mediation judgments means plaintiffs can at least have some claims ‘supported’. These claims can be enforced against defendants, functioning like an ordinary judgment. It is more appropriate to count civil mediation judgments as ones that supported plaintiffs’ claims and granted them remedies. Combining civil mediation judgments, the overall support rate during the studied period increases to 52.8 percent, with an average annual rate of 52.6 percent. Thus, more than half of the decisions supported trade secret claims during the studied period if civil mediation judgments were included. One point to note is that because of the reasons discussed previously,149 it is inferred that this study may undercount civil mediation judgments. This means the overall support rate could be even larger, taking into account this undercounting limitation.

To summarize, though Chinese courts during the studied period approved trade secret protection claims in fewer decisions than they rejected if excluding civil mediation judgments, the difference between the annual percentages is not statistically significant, meaning that the difference is the result of chance rather than a biased pattern of Chinese courts. The fewer support results do not represent that Chinese courts during the past decade did not extend adequate protection for trade secrets because even in the US there were more reject results than support ones. Moreover, the support rate, including civil mediation judgments, demonstrates that Chinese courts supported more claims than they rejected during the studied period. Therefore, the statistics contradict US criticisms about China’s inadequate protection of trade secrets.

Table 7 summarizes these findings. Table B.10 in Appendix B provides detailed numbers on every year.

Table 7
Percentage of decisions supporting trade secret claims, 2013–2021
Table 7

5 CONCLUSION

Using 33 coding criteria, this empirical work studied 2810 judicial documents published between 2013 and 2021 related to trade secrets litigation in China. Of the 2810 documents, 745 concerned substantive trade secret issues, with 885 trade secret claims addressed by Chinese courts. This study supplements my previous study on the development of China’s trade secrets law in books under US pressure. While the previous study concluded that trade secret law in books in China reached similarly stringent protection for trade secrets as the US law, this empirical study shows that Chinese courts did provide sufficient trade secrets protection to information owners in practice even before the recent legal changes. Trade secrets owners can satisfy each trade secret requirement in most decisions and have satisfactory success rates in establishing trade secrets protection status. Moreover, the overall support rates for their trade secrets claims are similar to US litigation in federal and state courts.

All these findings provide answers to the two research questions of this empirical study. First, there is no clear sign that Chinese courts did not extend sufficient trade secrets protection to owners during the studied period, as the US and its industry members alleged. Instead, Chinese courts tried to protect secret holders’ rights in decisions concerning trade secrets. Second, Chinese courts consistently enforced the law in books in practice rather than adopt arbitrary standards in making decisions. Thus, the true reason for the United States pushing China to adopt an increasingly restrictive trade secrets law is highly dubious when our empirical findings demonstrate that previous laws generally worked well in practice.

  • 1

    Chen Yang , '‘Development of China’s Trade Secrets Law in the US’ Shadow: Negative Consequences for China and Suggestions’ ' (2022 ) 17 University of Pennsylvania Asian L Rev. : 138.

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  • 2

    ibid 148–68.

  • 3

    ibid 178–84.

  • 4

    ibid.

  • 5

    ibid.

  • 6

    ibid 168–89;

    Cui Guobin (崔国斌), ‘商业秘密侵权诉讼的举证责任分配 [Allocating Burden of Proof in Trade Secrets Infringement Cases]’ [2020] 4交大法学 [SJTULRev], no. 4, 2020.

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  • 7

    ibid.

  • 8

    Chen (n 1).

  • 9

    Appendix A.

  • 10

    Beijing High People’s Court IP Tribunal Research Team, ‘《反不正当竞争法》修改后商业秘密司法审判调研报告) [Research Report on the Trade Secrets Judicial Trials after the Amendments for Anti-unfair Competition Law]’ [2019] 11电子知识产权 [Electronic Intellectual Property].

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  • 11

    ibid at 65.

  • 12

    For details of the China Judgments Online, see infra Part 2.2.1.

  • 13

    Beijing High People’s Court IP Tribunal Research Team (n 10) 66.

  • 14

    ibid 66.

  • 15

    Eleven percent of cases concerned both technical trade secrets cases and business trade secrets cases. ibid 67.

  • 16

    ibid 67.

  • 17

    Out of 338 cases 140 failed for that reason. ibid 67.

  • 18

    In the remaining parts, the BHPC study did provide another empirical finding about the remedies. Since this article does not focus on the remedies, it does not provide a summary of these here. ibid 80–81.

  • 19

    ibid 66.

  • 20

    ibid 66.

  • 21

    ibid 66–7.

  • 22

    ibid.

  • 23

    ibid 66.

  • 24

    ibid 65.

  • 25

    最高人民法院关于人民法院在互联网公布裁判文书的规定, 法释【2013】26号 [Provisions of the Supreme People’s Court on the Issuance of Judgments on the Internet by the People’s Courts, Judicial Interpretation [2013] No. 26] (promulgated by the Judicial Comm. Sup. People’s Ct., Nov. 21, 2013, effective Jan. 1, 2014, revised by the Judicial Comm. Sup. People’s Ct., Oct. 1, 2016), art 2; 最高人民法院关于人民法院在互联网公布裁判文书的规定, 法释【2016】19号 [Provisions of the Supreme People’s Court on the Issuance of Judgments on the Internet by the People’s Courts, Judicial Interpretation [2016] No. 19] (promulgated by the Judicial Comm. Sup. People’s Ct., Aug. 29, 2013, effective Oct. 1, 2016), art 2 (2016 Judgments Publication Judicial Interpretation).

  • 26

    2016 Judgments Publication Judicial Interpretation (n 25) arts 3 and 7.

  • 27

    ibid art 4.

  • 28

    ibid art 6.

  • 29

    The China Judgments Online <https://wenshu.court.gov.cn/website/wenshu/181029CR4M5A62CH/index.html> accessed March 17, 2022.

  • 30

    The dates for conducting the searches for decisions between 2013 and 2020 are during December 2021. The dates for conducting searches for decisions of 2021 are during February 2022.

  • 31

    Almeling David S, Snyder Darin W, Sapoznikow Michael, McCollum Whitney E & Weader Jill , '‘A Statistical Analysis of Trade Secret Litigation in Federal Courts’ ' (2009 ) 45 Gonz. L Rev : 291, 324 -6.

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    (Almeling et al., ‘Federal Courts’); David S Almeling, Darin W Snyder, Michael Sapoznikow, Whitney E. McCollum and Jill Weader, ‘A Statistical Analysis of Trade Secret Litigation in State Courts’ [2010] 46 Gonz. LRev 57, 69 (Almeling et al., ‘State Courts’).

  • 32

    Appendix A.

  • 33

    However, when an appeal or retrial case document did not touch on any substantive issues about trade secrets but mainly dealt with procedural matters, this study stopped coding them. These documents will show up in dataset 1 but not datasets 2 and 3, where this article mainly draws its empirical results from.

  • 34

    2016 Judgments Publication Judicial Interpretation (n 25) art 7.

  • 35

    A local judge in China told me that courts in different territories have their own internal policies about whether to publish repealed first instance decisions. Her court does not publish any overruled decisions after 2020. Nevertheless, based on the coding, it is found that Beijing courts seem to publish many overruled decisions online. Therefore, this question largely relies on the local rules.

  • 36

    ibid.

  • 37

    反不正当竞争法 [Anti-Unfair Competition Law], promulgated by Standing Comm. Nat’l People’s Cong., Sept. 2, 1993, effective Dec. 1, 1993; revised by Standing Comm. Nat’l People’s Cong., Nov. 4, 2017; revised by Standing Comm. Nat’l People’s Cong., Apr. 23, 2019, at arts 9-12.

  • 38

    For example, a commercial bribery case decision’s name is called ‘河南宝视达视觉健康科技有限公司、大连博雅宝时达眼镜有限公司商业贿赂不正当竞争纠纷民事一审民事裁定书’ (emphasis added), with ‘不正当竞争[unfair competition]’ included. Searching for ‘unfair competition [不正当竞争]’ in the case name search section on Mar. 17, 2022, yielded 3328 results in 2021, 4125 results in 2020, 3481 results in 2019, 2561 results in 2018, 1403 results in 2017, 926 results in 2016, 653 results in 2015, 593 results in 2014, and 142 results in 2013. The total number is 17 212.

  • 39

    最高人民法院关于人民法院在互联网公布裁判文书的规定, 法释【2013】26号 [Provisions on the Cause of Action of Civil Cases, Judicial Interpretation [2008] No. 11] (promulgated by the Judicial Comm. Sup. People’s Ct., Oct. 29, 2007, effective Apr. 1, 2008, revised by the Judicial Comm. Sup. People’s Ct., Dec. 29, 2020), art 4.1.

  • 40

    ibid.

  • 41

    2016 Judgments Publication Judicial Interpretation (n 25) art 7.

  • 42

    ibid art 4.

  • 43

    ibid art 6.

  • 44

    Among the 2810 decisions, 183 of them hide their contents from public view. These hidden decisions included 83 judgments, 71 rulings, 1 notification, and 28 unknown types of decisions on trade secret disputes. Among all first instance, appeal, and retrial decisions delivered by Chinese courts each year, about 5.6% of decisions (95%CI [3.2%–8.0%]) conceal their contents without specifying particular reasons.

  • 45

    2016 Judgments Publication Judicial Interpretation (n 25) art 4(3).

  • 46

    China has a unique civil mediation process where courts will lead the settlement process between parties. If parties reach settlement agreements during the civil mediation process, courts will make civil mediation judgments based on settlement agreements. Civil mediation judgments are treated as ordinary judgments delivered by courts. See eg,

    Guodong Du and Meng Yu, ‘Mediation in China: Past and Present’ China Justice Observer (August 11, 2019) <https://www.chinajusticeobserver.com/a/mediation-in-china-past-and-present> accessed July 26, 2022.

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  • 47

    ibid.

  • 48

    Ng Kwai Hang & He Xin , '‘Internal Contradictions of Judicial Meditation in China’ ' (2014 ) 39 L Soc. Inquiry : 285, 296 -7.

  • 49

    Du and Yu (n 46).

  • 50

    Taken together, they could account for around 7% (7.6%, 95%CI [6.4%, 8.7%]) of all first instance and appeal decisions made by Chinese courts during the studied period.

  • 51

    民事诉讼法 [Civil Procedure Law], promulgated by Nat’l People’s Cong., Sept. 4, 1991, effective Sept. 4, 1991, amended Dec. 24, 2021, effective Jan. 1, 2022), at art 100.

  • 52

    Part 4.3.

  • 53

    Appendix A.

  • 54

    Huangyu (黄宇) and Liu Zhaoning (刘兆宁), 当民事诉讼遭遇新冠疫情—疫情影响下民商事诉讼案件的程序管理及应对) [When Civil Litigations Encountered the COVID Pandemic – The Procedural Management and Responses of Civil and Commercial Litigations Under the Impact of the Pandemic]’

    ALLBRIGHT (Feb. 22, 2020), <https://www.allbrightlaw.com/CN/10475/c50be366a620fc83.aspx> accessed July 26, 2022.

  • 55

    ibid.

  • 56

    2016 Judgments Publication Judicial Interpretation (n 25) art 7.

  • 57

    Beijing High People’s Court IP Tribunal Research Team (n 10) 66–7.

  • 58

    For example, the SPC may take retrial cases whose previous proceedings had taken place in courts of other territories. Also, the SPC takes parties’ appeal claims for any first instance decisions rendered by high courts.

  • 59

    Chen (n 1) 149–56.

  • 60

    ibid.

  • 61

    ibid 158–9.

  • 62

    ibid 162–3.

  • 63

    ibid 178–84.

  • 64

    ibid 178–84.

  • 65

    Almeling et al., ‘Federal Courts’ (n 31) 3024.

  • 66

    See eg,

    Graves Charles Tait & DiBoise James A , '‘Do Strict Trade Secret and Non-Competition Laws Obstruct Innovation’ ' (2006 ) 1 Entrepreneurial Bus. LJ. : 323, 325 -6.

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    ; Ronald J Gilson, ‘The Legal Infrastructure of High Technology Industrial Districts: Silicon Valley, Route 128, and Covenants not to Compete’ [1999] 74 N.Y.U. LRev 575, 594–619; Alan Hyde, ‘The Wealth of Shared Information: Silicon Valley’s High-Velocity Labor Market, Endogenous Economic Growth, and the Law of Trade Secrets’ [1998] 11 J. Applied Corp. Fin. 28; Orly Lobel, Talent Wants to Be Free: Why We Should Learn to Love Leaks, Raids, and Free Riding (Yale University Press 2013) 29, 78–9.

  • 67

    Graves and DiBoise (n 66) 325–6; Gilson (n 66) 594–619; Hyde (n 66); Lobel (n 66) 29, 78–9.

  • 68

    Lemley Mark A , '‘The Surprising Virtues of Treating Trade Secrets as IP Rights’ ' (2008 ) 61 Stan. L. Rev. : 311, 329 -37.

  • 69

    Chen (n 1) 149–56.

  • 70

    Part 2.2.

  • 71

    Unif. Trade Secrets Act § 1 (4) (Unif. Law Comm’n 1985) (hereinafter UTSA);

    Katherine Linton, ‘The Importance of Trade Secrets: New Directions in International Trade Policy Making and Empirical Research’ J. Int’l Com. & Econ. 1, 3 (Sept., 2016), <https://www.usitc.gov/publications/332/journals/katherine_linton_importance_of_trade_secrets_0.pdf>.

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  • 72

    Almeling et al., ‘Federal Courts’ (n 31) 304–5.

  • 73

    Almeling et al., ‘State Courts’ (n 31) 71–3.

  • 74

    The mean annual percentage is 58.8%, 95%CI [54.2%, 63.4%].

  • 75

    The mean annual percentage is 22.7%, 95%CI [18.8%, 26.6%].

  • 76

    Almeling et al., ‘Federal Courts’ (n 31) 304–5; Almeling et al., ‘State Courts’ (n 31) at 71–3.

  • 77

    Almeling et al., ‘State Courts’ (n 31) 73.

  • 78

    ibid 72–3.

  • 79

    Pooley James , Trade Secrets , (Law Journal Press, 2019 ).

    § 4.02 [2]; 最高人民法院关于审理侵犯商业秘密民事案件适用法律若干问题的规定, 法释【2020】7号 [Provisions of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Civil Cases Involving Infringements upon Trade Secrets No. 7 [2020]], promulgated by Sup. People’s Ct., Sept. 10, 2020, effective Sept. 12, 2020, art 1 (2020 Judicial Interpretation).

  • 80

    ibid.

  • 81

    Pooley (n 79) § 4.02 [2]; 最高人民法院关于审理不正当竞争民事案件应用法律若干问题的解释, 法释【2007】2号) [Interpretation of the Supreme People’s Court on Some Issues Concerning the Application of Law in the Trial of Civil Cases Involving Unfair Competition, Judicial Interpretation [2007] No. 2] (promulgated by the Judicial Comm. Sup. People’s Ct., Jan. 12, 2007, effective Feb. 1, 2007), art 13 (2007 Judicial Interpretation); 2020 Judicial Interpretation (n 79) art 2.

  • 82

    反不正当竞争法 [Anti-Unfair Competition Law], promulgated by Standing Comm. Nat’l People’s Cong., Sept. 2, 1993, effective Dec. 1, 1993), art 10 (1993 AUCL).

  • 83

    Chen (n 1) 149–56.

  • 84

    ibid.

  • 85

    (2018) 粤民终1993号; (2018) 京73民终1834号.

  • 86

    ibid.

  • 87

    (2015) 深宝法知民初字第341号.

  • 88

    ibid.

  • 89

    ibid.

  • 90

    ibid.

  • 91

    UTSA § 1; Agreement on Trade-Related Aspects of Intellectual Property Rights art 39, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994) [hereinafter TRIPS Agreement], at art 39; 反不正当竞争法 [Anti-Unfair Competition Law], promulgated by Standing Comm. Nat’l People’s Cong., Sept. 2, 1993, effective Dec. 1, 1993; revised by Standing Comm. Nat’l People’s Cong., Nov. 4, 2017; revised by Standing Comm. Nat’l People’s Cong., Apr. 23, 2019, art 9 (2019 AUCL).

  • 92

    Pooley (n 79) 4.05 [1].

  • 93

    Almeling et al., ‘Federal Courts’ (n 31) 319–20; Almeling et al., ‘State Courts’ (n 31) 71–3.

  • 94

    Because the coding methods coded trade secret claims addressed in decisions according to trade secret types. Therefore, if a case is concerned with multiple trade secret claims within a trade secret type, this study coded them as one trade secret issue/type. Accordingly, there may be situations when some trade secret claims within a particular type of trade secret satisfies the requirements while others do not. In this sense, this study coded this situation as mixed results, indicating that some trade secrets satisfy requirements within this particular type of trade secret while others do not.

  • 95

    7.4%, 95%CI [4.7%, 9.3%], N = 458.

  • 96

    (2018) 京0105民初8193号; (2020) 京73民终356号.

  • 97

    (2019) 粤0112民初5880号.

  • 98

    (2018) 京0105民初18924号.

  • 99

    See eg, (2020) 沪73民终83号; (2018) 粤民终1993号; (2020) 京0102民初16302号; (2014) 辽民三终字第109号.

  • 100

    See eg, (2018) 豫01民初2941号; (2017) 粤12民终289号; (2019) 苏01民初82号; (2020) 浙0203民初12790号.

  • 101

    Notes 79–81 and accompanying text.

  • 102

    UTSA § 1(4); 2020 Judicial Interpretation (n 79) art 3.

  • 103

    A Paired Samples t-Test showed that the differences between the mean annual percentage of coded trade secret claims addressing the NRA and that of claims addressing the value requirement are statistically significant (t(8) = 5.28, p < .05, CI95 = [0.092, 0.234]); a Paired Samples t-Test showed that the differences between the mean annual percentage of coded trade secret claims addressing the NPA and that of claims addressing the value requirement are also statistically significant (t(8) = 7.77, p < .05, CI95 = [0.154, 0.285]).

  • 104

    A Paired Samples t-Test showed that the differences between the mean annual percentage of coded trade secret claims addressing the NPA and that of claims addressing the NRA are statistically significant, though the differences are not large (t(8) = 5.0164, p < .05, CI95 = [0.031, 0.083]).

  • 105

    Note 80 and accompanying text.

  • 106

    See eg (2020) 最高法知民终772号; (2020) 赣01知民初92号; (2017) 苏05民初535号; (2016) 浙0108民初4946号; (2017) 湘01民初1369号.

  • 107

    See eg (2019) 苏民申5414号; (2020) 陕民终766号; (2020) 赣01知民初92号; (2018) 粤73民初3030号.

  • 108

    See eg (2018) 京0108民初41342号; (2020) 鄂09民初38号; (2019) 辽0203民初7312号.

  • 109

    See eg (2019) 粤19民终6309号; (2016) 粤73民初2334号.

  • 110

    See eg (2019) 京73民终2171号; (2019) 京0101民初1532号; (2019) 鲁02民终3468号; (2019) 闽民终516号; (2012) 浙绍知初字第77号.

  • 111

    UTSA § 1(4)(ii).

  • 112

    Comments to UTSA § 1.

  • 113

    2019 AUCL (n 91) art 9.

  • 114

    2007 Judicial Interpretation (n 81) art 11.

  • 115

    2020 Judicial Interpretation (n 79) art 6.

  • 116

    95%CI [70.4%, 77.5%], N = 572.

  • 117

    95%CI [23.2%, 28.2%], N = 572.

  • 118

    See eg (2020) 豫03知民初330号; (2019) 浙07民终6906号; (2019) 渝民终80号; (2016) 鲁0211民初16133号.

  • 119

    See eg (2018) 粤0106民初20094号; (2018) 豫01民初2957号; (2017) 辽0203民初158号; (2016) 粤2071民初16888号; (2016) 最高法民申2161号.

  • 120

    See eg (2018) 京0108民初41342号; (2019)沪0104民初14073号; (2019) 浙0212民初1717号; (2016) 粤2072民初13641号.

  • 121

    95%CI [85.1%, 91.3%], N = 423. The mean annual percentage of successful claims with confidentiality agreements in place is 87.8% (SD = 5.0%).

  • 122

    See eg (2016) 粤0604民初6816号; (2016) 皖民终198号; (2014) 渝二中法民初字第00106号.

  • 123

    Appeared in 32.9% (95%CI [28.4%, 37.3%], N = 423) of successful claims. The mean annual percentage is 36.6% (SD = 13.0%).

  • 124

    Appeared in 20.8% (95%CI [16.9%, 24.7%], N = 423) of successful claims. The mean annual percentage is 21.1% (SD = 13.0%).

  • 125

    Appeared in 8.5% (95%CI [5.9%, 11.2%], N = 423) of successful claims. The mean annual percentage is 8.2% (SD = 7.1%).

  • 126

    95%CI [45.8%, 52.5%], N = 850 (the total number of claims where the question of whether trade secret status was held established was decided).

  • 127

    Including claims where all trade secrets within one type alleged satisfied requirements and claims where at least one trade secret within one type alleged satisfied requirements.

  • 128

    95%CI [47.5%, 54.2%], N = 850.

  • 129

    A Paired Samples t-Test showed that the differences between the mean annual percentage of trade secret claims that succeeded in establishing protection for at least one trade secret and that of claims which failed in establishing any trade secret status are not statistically significant (t(8) = -0.9567, p = .367, CI95 = [-0.142, 0.059]); A Paired Samples t-Test showed that the differences between the mean annual percentage of trade secret claims that succeeded in establishing protection for all trade secrets alleged and that of claims which failed in establishing any trade secret status are not statistically significant (t(8) = 0.035, p = .9732, CI95 = [-0.101, 0.104]).

  • 130

    Pearson’s χ2 revealed a significant association between trade secret types and satisfying rates (χ2(2) = 11.0, p < .01): technical information appeared to be more likely to satisfy requirements and receive protection status, but the client lists were more likely to fail requirements and be denied protection.

  • 131

    55.0%, 95%CI [48.8%, 61.1%].

  • 132

    About 44.2% of decisions on client lists satisfied the requirements (95%CI [39.5%, 48.8%]).

  • 133

    反不正当竞争法 [Anti-Unfair Competition Law] (promulgated by the Standing Comm. Nat’l People’s Cong., Sept. 2, 1993, effective Dec. 1, 1993; revised by the Standing Comm. Nat’l People’s Cong., Nov. 4, 2017; revised by the Standing Comm. Nat’l People’s Cong., Apr. 23, 2019), art 9; UTSA § 1(1)–(2).

  • 134

    ibid.

  • 135

    ibid.

  • 136

    95%CI [42.2%, 50.8%], N = 745.

  • 137

    95%CI [35.4%, 43.9%], N = 745.

  • 138

    95%CI [10.9%, 16.9%], N = 745.

  • 139

    60.4%, 95%CI [54.1%, 64.6%]; the mean annual percentage is 62.2% (SD = 12.0%).

  • 140

    For example, plaintiffs listed bona fide third party purchasers of the infringing products or their clients as defendants in some cases. See eg (2019) 沪民终129号, (2017)京73民初18号; (2017) 最高法民申1092号; (2016) 新民终647号; (2016) 新01民初95号. Also, plaintiffs were prone to list as many employees as possible, with some even listing some lower-level employees who did not have access to the trade secrets but were simply recruited by a new corporation started by some other higher-level employees. See eg (2018) 京73民终686号, (2019) 豫01知民初324号. Similar litigation strategies exist in the US. Pooley (n 79) § 4.02 [2].

  • 141

    See eg (2019) 苏民终1629号; (2020) 粤0303民初21439号; (2019) 云民终506号; (2017) 云01民初2472号; (2015) 鹤民初字第96号.

  • 142

    See eg (2019) 苏民终1629号; (2015) 鹤民初字第96号; (2015) 海民(知)初字第38761号; (2013) 沪高民三(知)终字第134号; (2021) 湘0103民初4996.

  • 143

    See eg (2017) 京73民初1665号; (2019) 最高法民申2794号; (2017) 闽民终1140号; (2017) 粤1972民初3934号; (2015) 杭滨知初字第362号.

  • 144

    See the previous section on Methodology (2.2).

  • 145

    At most, this study may overcount 170 success decisions (164 affirmed and 6 reversed results) and 170 failure decisions (154 affirmed and 16 reversed results). The chances of overcounting, thus, are similar.

  • 146

    A Paired Samples t-Test showed that the differences between the annual percentages of decisions granting plaintiffs remedies and those of decisions that rejected all plaintiffs’ claims are not statistically significant (t(8) = -2.1486, p = .06391, CI95 = [-0.222, 0.0079]).

  • 147

    Almeling et al., ‘State Courts’ (n 31) 86.

  • 148

    Almeling et al., ‘Federal Courts’ (n 31) 313.

  • 149

    See Part 2.2 on Methodology.

APPENDIX A: CODEBOOK

tbl-008

APPENDIX B: DETAILED DATA

Table B.1

Detailed data on percentage of IP courts’ decisions, 2013–2021

Table B.1
Table B.2

Detailed data on number and percentage of individual case decisions

Table B.2
Table B.3

Detailed data on number of decisions against affiliated parties, 2013–2021

Table B.3
Table B.4

Detailed data on number of decisions by trade secret type

Table B.4
Table B.5

Detailed data on number of decided claims addressing the secrecy requirement

Table B.5
Table B.6

Detailed data on number of decided claims addressing the secrecy measures requirement

Table B.6
Table B.7

Detailed data on types of measures used by trade secret owner in successful claims

Table B.7
Table B.8

Detailed data on whether claims obtained trade secret protection status (satisfied all requirements)

Table B.8

Note: a. Mixed means that at least one trade secret within the claim satisfied all three requirements and obtained trade secret protection status.

Table B.9

Detailed data on the existence of misappropriation, 2013–2021

Table B.9
Table B.10

Detailed data on the overall success rates, 2013–2021

Table B.10

Contributor Notes

SJD, 2023, University of Pennsylvania Carey Law School; LLM (with distinction), 2020, University of Pennsylvania Carey Law School; LLM, 2019, London School of Economics and Political Science; LLB, 2018, China University of Political Science and Law. I would like to express my deepest gratitude to my doctoral supervisor Professor Gideon Parchomovsky and my dissertation committee member Professor Andrea (Yanbai) Wang for their comments on this article.