Construction Of Burden Of Prove Trade Secret Exiests In Civil Action Concerning Trade Secret

The only issue which the thesis tries to resolve is how to prove whether certain party possesses trade secret or not in a civil action, i.e., to support the parties'own claim, which fact is the object to be proven, and what's extend thereof.Base on the reading and understanding of the authorities in China's and U.S.A.'s law system, the author find that"not generally known, not readily ascertainable","measure taken", and"value"shared by both authorities as common character of the trade secret are the object to be proven. Moreover, due to the same character, we can learn from the practise of the U.S.A. on the burden of prove trade secret despite of the difference of the authority, law system, culture, the development class, etc. between us.The author indicates that Inversion of Evidential Burden rule is not applicable on the issue of trade secret claim. It's up to trade secret claimer who must prove the three character first, then to the counterparty. Supported by U.S.A. case opinions, the author holds that the following question should be answered when proving trade secret exist or not:Is trade secret not generally known, not readily ascertainable? The claimer must identify the content of the trade secret, and its source or the way it is made, which must be established not to reveal the information. The counterparty could cite information source generally known or readily ascertainable to rebuttal; however, he\she must establish the such information source could reveal the information in fact.Is the measure taken under the circumstance reasonable? The claimer must list the measures he\she takes, and the measures could at least suggest a intend of keeping confidentiality. As a rebuttal, the counterparty could find certain hole in the measures by finding the weak point on the measure or individual not bound by confidential relationship. Executing its discretion, the court could conclude whether the measure taken under the circumstance is reasonable in the conflict of the evidence between the parties.Does trade secret possess the minimal value? The claimer must prove that minimal competitive advantage is created by the information he\she claim as trade secret. The parties could cite evidence of competitive advantage to establish the value or the opposition; the indirect evidenct works as well.The three character of trade secret usually interwind in fact. Thereforce, the court could conclude after testing all the character as a whole.At last, the author holds that, protect trade secret in term of intellectual property law is a reasonable choice, so as the term of unfair copetetion law; both are fine; But it should be more explicit in legislation to get rid of dispution.