Confidential Information are Trade Secrets

The economic and trade agreement signed by the USA and China on 15 January 2020 (phase one) contains prominent provisions on the protection of trade secrets. The content of the agreement includes not only procedural decisions such as burden sharing in civil proceedings, interim measures to prevent the use of trade secrets or criminal proceedings and penalties, but also the concrete obligations of government and authority personnel, experts or consultants.

The agreement also highlights confidential business information. A footnote in the text of the agreement makes it clear that such information also includes knowledge about procedures, activities, product styles, apparatus and production – all information with a commercial value, the disclosure of which would probably cause considerable damage. As a result, the scope of protection of trade secrets is increased.

According to the revised provisions of the Law on Unfair Competition in China, trade secrets refer to technical and business information that 1) is not known to the public, 2) may bring economic benefits to the owner, and 3) is protected by appropriate measures. In principle, these three criteria also apply to confidential business information that is assessed as technical or business information. The new agreement underlines once again what is already guaranteed: Confidential information is also protected in China as business secrets.

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