To successfully prove a trade secret infringement in court, viable evidence is required. The plaintiff can prove various forms of infringement: The acquisition of a trade secret through illegal means such as theft, bribery, or fraud; the defendant’s disclosure, use, or permission to use the acquired trade secret; the breach of confidentiality obligations; or the assistance of third parties in the unlawful use of the trade secret.
If the plaintiff alleges that the defendant breached its duty of confidentiality, it must prove that the defendant was obligated to maintain confidentiality under the law or the contract. If no express duty of confidentiality is set forth in the contract, the plaintiff may still present evidence that the defendant should have been aware of the confidentiality.
To prove a specific act to violate the trade secret, the plaintiff may present various evidence, such as products, contracts, or expert reports, showing the defendant’s use of the trade secret. If the defendant disputes the trade secret infringement, he must present relevant evidence. For example, he can prove that the disputed information is not identical to the trade secret or that he discloses or uses the secret lawfully or has the appropriate authorization. If the injured party can prove sufficient measures to protect its know-how and the use of its trade secrets on a prima facie basis, the burden of proof shifts to the defendant.
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China Intellectual Property Blog 