On April 25, 2025, China’s State Administration for Market Regulation (SAMR) released the draft Regulations on the Protection of Trade Secrets for comment (商业秘密保护规定(征求意见稿)). Comments are due May 25, 2025. This draft updates the 1998 version with necessary revisions due to the march of technology. As explained by SAMR:

The revision and promulgation of the “Regulations on the Protection of Trade Secrets” is an urgent need to adapt to the new situation and new challenges of trade secret protection. With the development and changes of the domestic and international economic situation, the “Several Provisions on Prohibition of Infringement of Trade Secrets” revised in 1998 has lagged behind the needs of practice and needs to be revised and improved in line with the times. On the one hand, with the rapid development of the digital economy, digital information has become an important carrier of corporate trade secrets. The huge changes in trade secrets in the digital age have put forward higher technical requirements for corporate self-protection and administrative law enforcement, and there is an urgent need for detailed and clear rules and guidance. On the other hand, in recent years, the world’s major developed economies have issued some new institutional regulations on trade secret protection, and major multilateral economic and trade agreements have also put forward clear requirements for trade secret protection. Improving the system of trade secret protection is an inevitable requirement to connect with international high-standard economic and trade rules and better respond to the new trend of global market competition.

A translation follows. The original text and drafting notes are available here (Chinese only).

Chapter I General Provisions

Article 1 These Regulations are formulated in accordance with the Anti-Unfair Competition Law of the People’s Republic of China (hereinafter referred to as the “Anti-Unfair Competition Law”) and other relevant laws, administrative regulations, and relevant documents of the Party Central Committee and the State Council in order to strengthen the protection of trade secrets, stop acts of infringement of trade secrets, protect the legitimate rights and interests of trade secret rights holders and related entities, encourage research and development and innovation, maintain a fair and competitive market order, and serve the high-quality development of the economy and society.

Article 2 The acquisition, disclosure and use of trade secrets shall follow the principles of voluntariness, equality, fairness and good faith, and comply with laws, regulations and business ethics.

Article 3 The market supervision and management department is responsible for the organization, coordination, and guidance of the protection of trade secrets and the administrative law enforcement of trade secret infringements.

Chapter II Definition of Trade Secrets

Article 4 The term “trade secrets” as used in these Regulations refers to commercial information such as technical information, business information, etc. that is not known to the public, has commercial value, and for which the right holder has taken corresponding confidentiality measures.

Information related to technology, such as structures, raw materials, components, formulas, materials, samples, styles, designs, new plant variety propagation materials, processes, methods or their steps, algorithms, data, computer programs and related documents, may be deemed to constitute the technical information referred to in the first paragraph of this Article.

Creativity, management, sales, finance, plans, samples, bidding materials, customer information, data and other information related to business activities may be deemed to constitute the business information referred to in the first paragraph of this Article.

Article 5 The customer information referred to in these regulations includes the customer’s name, address, contact information, and transaction habits, intentions, content and other information.

If an operator claims that specific customer information is a trade secret simply because it maintains a long-term and stable trading relationship with the specific customer, such claim will not be recognized.

If a customer conducts market transactions with an employee’s company based on trust in the employee personally, and after the employee leaves the company, it can be proved that the customer voluntarily chose to trade with the employee or his new company, it should be deemed that the employee did not use improper means to obtain the customer information of the original company.

Article 6 The term “not known to the public” as used in these Regulations means that the information was not generally known or easily accessible to relevant personnel in the field to which it belongs when the suspected infringement occurred.

Under any of the following circumstances, the relevant information may be deemed to be known to the public:

(1) The information is common knowledge or industry practice in the relevant field;

(ii) The information only involves the product’s dimensions, structure, materials, simple combination of components, etc., which can be directly obtained by relevant personnel in the field by observing the marketed products;

(3) The information has been publicly disclosed in public publications or other media;

(4) The information has been made public through public reports, exhibitions, etc.;

(5) Relevant personnel in the relevant field can obtain the information from other public channels.

If new information is formed by organizing, improving and processing information known to the public and meets the provisions of the first paragraph of this Article, it shall be deemed that the new information is not known to the public.

Article 7 The term “commercial value” as used in these Regulations means that the information has actual or potential commercial value because it is not known to the public and can bring commercial benefits or competitive advantages to the right holder.

If any of the following circumstances is met, the information can be deemed to bring commercial benefits or competitive advantages to the right holder, unless there is contrary evidence to prove that the information has no commercial value:

(1) The information brings economic benefits to the right holder;

(2) The information has a significant impact on the production and operation of the right holder;

(3) The right holder has paid a corresponding price, research and development costs or operating costs or other material inputs to obtain the information, which has brought the right holder a competitive advantage;

(iv) Other circumstances that can prove that the information can bring commercial benefits or competitive advantages to the right holder.

If the interim results formed in production and operation activities meet the requirements of the first paragraph of this Article, such results may be deemed to have commercial value.

Article 8 The “appropriate confidentiality measures taken by the right holder” as used in these Regulations refers to reasonable confidentiality measures taken by the right holder before an infringement occurs to prevent information leakage that are commensurate with factors such as the commercial value of the trade secret and the difficulty of independent acquisition.

If any of the following circumstances exists and the leakage of confidential information can be prevented under normal circumstances, it can be deemed that the right holder has taken “corresponding confidentiality measures”:

(1) Signing a confidentiality agreement or stipulating confidentiality obligations in a contract;

(2) Imposing confidentiality requirements on employees, former employees, suppliers, customers, visitors, etc. who have access to or obtain trade secrets through charters, training, rules and regulations, written notifications, etc.;

(3) Restricting visitors to factories, workshops and other production and operation sites involving confidential information or implementing differentiated management;

(4) distinguishing and managing trade secrets and their carriers by marking, classifying, isolating, encrypting, sealing, limiting the scope of persons who can access or obtain them, etc.;

(5) Taking measures such as prohibiting or restricting the use, access, storage, or copying of computer equipment, electronic equipment, network equipment, storage equipment, software, etc. that can access or obtain trade secrets;

(6) requiring a resigned employee to register, return, remove or destroy the trade secrets and their carriers that he or she has accessed or obtained, and to continue to bear the obligation of confidentiality;

(7) Other reasonable confidentiality measures are taken.

Chapter III Construction of Trade Secret Protection System

Article 9 Operators shall implement the principal responsibility for protecting trade secrets, strengthen self-protection awareness and capacity building, and actively take effective measures to strengthen internal control and compliance management of trade secrets protection such as confidential information, confidential areas, confidential personnel, and confidential carriers based on their own industry characteristics, technical requirements, and competitive advantages, and consciously resist infringements.

Article 10 Market supervision and administration departments are responsible for the organization, coordination, supervision, administration and service guidance of trade secrets protection. Through publicity and training, building service sites, improving law enforcement capabilities, and cultivating third-party service agencies, they help operators establish and improve trade secrets protection systems and promote the overall improvement of trade secrets protection levels.

Article 11 The market supervision and management department shall, together with relevant departments, provide legal consultation, policy guidance, risk warning, rights protection support and other services to operators, strengthen foreign-related rights protection guidance and assistance, guide operators to carry out trade secret protection work, and safeguard their own legitimate rights and interests.

The market supervision and management departments will work with the judicial departments to establish a rapid and coordinated protection mechanism for commercial secrets that involves information exchange, resource sharing, case consultation, and law enforcement coordination, and strengthen the effective connection between administrative protection and judicial protection.

Article 12 Industry organizations shall strengthen industry self-discipline, guide and regulate the legal competition of operators, strengthen guidance on operators to establish and improve internal management systems for the protection of trade secrets, coordinate the handling of trade secret infringement disputes, and cooperate with and assist supervisory and inspection departments in investigating and handling acts of infringement of trade secrets.

Industry organizations are encouraged to formulate trade secret protection standards and compliance guidelines for their industries under the guidance of government departments.

Article 13 The people’s governments of all regions shall strengthen leadership over the protection of trade secrets, strengthen the overall coordination and work guarantees of related major matters, strengthen the construction of trade secret protection capabilities, and promote the establishment and improvement of a trade secret protection system that integrates self-protection, administrative protection, and judicial protection of trade secrets.

Article 14 Encourage, support and protect all organizations and individuals to conduct social supervision on violations of trade secrets. Market supervision and management departments shall keep confidential the organizations and individuals who report and assist in investigating and punishing violations of trade secrets.

No organization or individual may fabricate facts of infringement of trade secrets to frame others or engage in blackmail, or abuse the right to report to disrupt the normal working order of market supervision and management departments.

Chapter IV: Infringement of Trade Secrets

Article 15 Any business operator or other natural person, legal person or unincorporated organization that individually or jointly infringes upon trade secrets or instigates, induces or assists others in infringing upon trade secrets shall be deemed to have infringed upon trade secrets as defined in these Regulations.

Article 16: Business operators and other natural persons, legal persons and unincorporated organizations shall not obtain the business secrets of the right holder by theft, bribery, fraud, coercion, electronic intrusion or other improper means.

Any of the following circumstances shall be deemed as an act of obtaining the right holder’s business secrets by improper means as stated in the first paragraph of this Article:

(1) Accessing, possessing or copying, without authorization, documents, articles, materials, raw materials or electronic data under the control of the right holder that contain trade secrets or from which trade secrets can be derived, in order to obtain the trade secrets of the right holder;

(2) Inducing, coercing or deceiving the employees or others of the right holder to obtain trade secrets for them by means of offering money or other property benefits, personal threats or traps;

(3) Accessing the digital office system, server, mailbox, cloud disk, application account or other electronic information system of the right holder without authorization or exceeding the scope of authorization to obtain trade secrets or implanting computer viruses to obtain their trade secrets;

(4) downloading a trade secret to an email address or other electronic device controlled by an individual without the permission of the trade secret right holder, or causing the trade secret to be out of the control of the right holder by other means;

(5) Taking other actions that violate the law or generally accepted business ethics to obtain the trade secrets of the right holder.

Article 17: Business operators and other natural persons, legal persons and unincorporated organizations shall not disclose, use or allow others to use the business secrets of the right holder obtained by improper means.

“Disclosure” as used in this article means the act of making a trade secret known to others in any manner that may damage the competitive advantage or economic interests of the right holder.

“Use” as used in this article means the direct use of trade secrets in production and operation activities, the use of trade secrets after modification or improvement, or the adjustment, optimization and improvement of relevant production and operation activities based on trade secrets.

Article 18 Operators and other natural persons, legal persons and unincorporated organizations shall not violate confidentiality obligations stipulated by law, agreement or determined by effective judicial documents, or violate the requirements of the right holder to maintain confidentiality of commercial secrets, and disclose, use or allow others to use commercial secrets in their possession.

Any of the following circumstances shall be deemed as confidentiality obligations or requirements of the right holder to keep business secrets as referred to in this article:

(1) Agreements on maintaining business secrets concluded with the right holder in employment contracts, confidentiality agreements, cooperation agreements, etc.;

(2) unilateral confidentiality requirements made by the right holder to the counterparty who knows the trade secret, including but not limited to the counterparty who knows the trade secret through contractual relationship, and the counterparty who knows the trade secret through participation in research and development, production, inspection, etc.;

(3) In the absence of a confidentiality agreement, employment contract, cooperation agreement, etc., the rights holder’s other requirements for employees, former employees, partners, etc. to maintain business secrets through other rules and regulations or reasonable confidentiality measures;

(4) Knowing or should have known that the information he obtained was the right holder’s trade secret based on the principle of good faith, the nature of the contract, the purpose of the contract, the contract conclusion process, transaction practices, etc.;

(5) Other circumstances under which confidentiality obligations are imposed as provided for by laws and administrative regulations.

Article 19: Business operators and other natural persons, legal persons and unincorporated organizations shall not instigate, induce or assist others in violating confidentiality obligations or the rights holder’s requirements for maintaining confidentiality of business secrets, or obtaining, disclosing, using or allowing others to use the rights holder’s business secrets.

Any of the following circumstances shall be deemed as an infringement of trade secrets:

(1) intentionally using words, actions or other methods to persuade, advise or encourage others to violate confidentiality obligations or violate the rights holder’s requirements for maintaining business secrets;

(2) Inducing others to violate confidentiality obligations or violate the rights holder’s requirements for maintaining business secrets by means of promises of positions, material rewards, etc.;

(3) Providing convenience in various ways for others to violate confidentiality obligations or the rights holder’s requirements for maintaining confidentiality in order to obtain, disclose, use or allow others to use the rights holder’s trade secrets.

Article 20 If a third party knowingly or should have known that the employees, former employees or other entities or individuals of the trade secret right holder have committed any illegal act listed in Articles 16, 17, 18 or 19 of these Regulations, and still obtains, discloses, uses or allows others to use the trade secret, it shall be deemed as an infringement of the trade secret.

Article 21 The following acts shall not constitute infringement of trade secrets:

(1) Independent discovery or independent research and development;

(2) Obtaining relevant technical information of a product by disassembling, mapping, analyzing, etc. a product lawfully obtained from a public channel through technical means;

(3) Employees, former employees or partners of the trade secret right holder or holder disclose trade secrets to state organs and their staff for the purpose of exposing illegal or criminal acts, safeguarding national security and social public interests, etc.;

(4) Other circumstances that do not constitute infringement of trade secrets as provided for by laws and administrative regulations.

Chapter V Investigation and Punishment of Suspected Trade Secrets Infringement

Article 22: The market supervision and administration departments at or above the county level where the infringement of trade secrets occurs or where the rights holder is located shall be responsible for investigating and handling the infringement of trade secrets. If two or more market supervision and administration departments have jurisdiction and a dispute arises, they shall report to the common higher-level market supervision and administration department for designation of jurisdiction.

Article 23: The following entities may, as the trade secret rights holders, report infringements to the market supervision and administration department:

(1) the owner of the trade secret;

(2) the licensee of an exclusive license contract for the use of a trade secret;

(3) the licensee of a contract for exclusive use of a trade secret;

(4) an authorized person who has been authorized in writing by the owner of the trade secret.

Article 24 When a right holder believes that his or her trade secrets have been infringed and reports the infringement to the market supervision and management department, he or she shall provide preliminary evidence materials such as the commercial information he or she possesses meets the statutory requirements for trade secrets and the infringement of his or her trade secrets.

Materials required to determine that a trade secret meets the statutory requirements include:

(1) the process and time of formation of the trade secret;

(2) evidence materials on the specific content, carrier and form of expression of the trade secret that are not known to the public;

(3) the commercial value of the trade secret;

(4) the confidentiality measures taken to protect the trade secret;

(5) other evidential materials that the right holder believes he or she enjoys the rights.

If the right holder submits any of the following materials, it shall be deemed that it has provided preliminary evidence to reasonably indicate that its trade secrets have been infringed:

(1) There is evidence that the suspected infringer has channels or opportunities to obtain trade secrets, and the information used by the suspected infringer is substantially the same as the trade secret of the right holder;

(2) There is evidence that the suspected infringer has channels or opportunities to obtain trade secrets, and the confidentiality facilities have been destroyed by the suspected infringer by improper means;

(3) There is evidence that the trade secret has been actually obtained by the suspected infringer;

(4) There is evidence that the trade secret has been disclosed or used by the suspected infringer or is at risk of being disclosed or used;

(5) There is other evidence showing that the trade secret has been infringed by the suspected infringer.

Article 25 The right holder or the suspected infringer may entrust an appraisal institution to conduct appraisals on specialized matters such as whether the right holder’s information is known to the public and whether the information used by the suspected infringer is substantially the same as the right holder’s information.

The right holder or suspected infringer may entrust a person with specialized knowledge to provide opinions on specialized matters such as whether the right holder’s information is known to the public.

The right holder and the suspected infringer may explain to the market supervision and management department the appraisals or opinions they provide.

In the process of investigating and handling cases of commercial secret infringement, the market supervision and management department may suggest that the right holder conduct an appraisal on specialized matters such as whether the technical information involved is known to the public, whether the information used by the suspected infringer is substantially the same as the right holder’s information, etc.

Article 26 Where an infringement of a trade secret involves computer software, a judgment may be made as to whether the two are substantially identical based on whether the algorithm, software documentation, source code or target program of the trade secret is identical to the software involved in the alleged infringement, or whether the target program or source code of the computer software involved in the alleged infringement contains computer software-specific content for which the right holder claims the trade secret, or whether the software results (including software interface, operating parameters, database structure, etc.) are identical to the trade secret.

Article 27 Suspected infringers, interested parties, other relevant entities and individuals shall truthfully provide relevant evidence to the market supervision and management department.

If it can be proved that the information used by the suspected infringer is substantially the same as the business secret claimed by the right holder, and that the suspected infringer has the conditions to obtain the business secret, but the suspected infringer cannot or refuses to provide evidence that the information used was legally obtained or used, the market supervision and management department may determine that the suspected infringer has committed an infringement based on the relevant evidence.

Article 28 Upon application by the right holder and provision of preliminary evidence, the market supervision and administration department may seal and seize evidence that may be identified as trade secret infringement during the law enforcement investigation, including but not limited to correspondence emails, chat records, storage media, infringing items and equipment, internal documents and meeting minutes, etc. If the case is transferred to the judicial authority for handling, the relevant evidence should be transferred together.

The act of infringement of trade secrets involves computer technology. If electronic data related to the case is found but cannot be directly extracted on the spot, the relevant computer servers, mainframes, hard disks and other storage devices may be seized, and evidence may be promptly collected through copying, mirroring, video recording, screenshots, data recovery and other means.

Article 29 Where a right holder has filed a commercial secret infringement lawsuit with a people’s court before reporting a complaint to a market supervision and administration department, and the lawsuit has not yet been concluded, the market supervision and administration department may refuse to accept the case.

During the process of investigating and handling a trade secret infringement case, if the right holder simultaneously files a trade secret infringement lawsuit with the People’s Court, the market supervision and management department may suspend the investigation and handling of the case. After the reasons for suspension are eliminated, the case investigation and handling procedure shall be immediately resumed or terminated.

Article 30 If the infringer applies for a patent using the right holder’s trade secret, the market supervision and administration department may copy the administrative penalty results to the intellectual property management department for processing, and the right holder may file a lawsuit with the people’s court and request civil remedies such as compensation for damages.

Article 31 If the market supervision and administration department discovers, based on the evidence collected during investigation and the facts of the case ascertained, that a crime is suspected and that criminal liability needs to be pursued in accordance with the law, it shall promptly transfer the case to the public security organ.

Article 32 Where infringement of trade secrets is found, the market supervision and administration department may, at the request of the party concerned, mediate on the amount of compensation for infringement of trade secrets at the same time as imposing administrative penalties; if mediation fails, the party concerned may sue the people’s court in accordance with the law.

Article 33: State organs and their staff have an obligation to keep confidential commercial secrets that they become aware of in the course of performing their official duties and must not disclose, use or allow others to use the rights holder’s commercial secrets beyond the scope of their duties.

Market supervision and management departments shall not disclose content involving commercial secrets in administrative penalty information.

Chapter VI Legal Liability

Article 34 Any violation of these Regulations that infringes upon trade secrets shall be punished in accordance with the provisions of Article 21 of the Anti-Unfair Competition Law.

Article 35 Any of the following circumstances may be deemed to be a serious circumstance as referred to in Article 21 of the Anti-Unfair Competition Law:

(1) Causing the right holder to suffer property losses of RMB 300,000 or more or causing bankruptcy;

(2) electronic intrusion causes serious damage to the right holder’s office system network and computer data;

(3) Causing major losses to the state or society, or having adverse social impacts;

(4) the infringer refuses to execute the penalty decision and continues to infringe on trade secrets;

(5) Other acts of a serious nature.

Article 36 In accordance with Article 21 of the Anti-Unfair Competition Law, when an infringer is ordered to stop an illegal act, the time limit for ordering the infringer to stop the illegal act shall generally last until the trade secret has become known to the public.

If it is determined in accordance with the provisions of the preceding paragraph that the time for stopping infringement is obviously unreasonable, the market supervision and management department may, while protecting the competitive advantage of the right holder’s trade secret in accordance with the law, order the infringer to stop using the trade secret within a certain period of time or within a certain scope.

Orders to stop illegal conduct include:

(1) ordering the infringer to stop using the right holder’s trade secrets to carry out production and business activities;

(2) order the infringer to return the drawings, software and related materials containing trade secrets to the right holder;

(3) ordering the infringer to destroy the carrier containing the trade secret, unless the right holder agrees to other disposal methods such as purchase or sale;

(4) ordering the infringer to remove the right holder’s commercial secret information under its control;

(5) other orders to stop acts that infringe upon the rights holder’s trade secrets.

Article 37 The illegal gains referred to in Article 21 of the Anti-Unfair Competition Law may be determined in the following ways:

(1) If the infringer obtains the right holder’s trade secret by improper means and then uses it for production, the illegal income shall be calculated based on the total sales revenue of the illegally produced goods minus the purchase price of the raw materials used to produce the goods and the taxes and fees paid;

(2) If the infringer obtains the right holder’s trade secrets by improper means and then uses them to sell goods, the illegal gains shall be calculated based on the total sales revenue of the illegally sold goods, minus the purchase price of the goods sold and taxes paid;

(3) If the infringer obtains the right holder’s business secrets by improper means and then uses them to provide services, the illegal gains shall be calculated based on the total income from the illegal services provided, minus the purchase price of the goods used in the service and the taxes paid;

(4) The money or other property benefits obtained by disclosing or allowing others to use trade secrets shall be deemed as illegal gains.

Article 38: When investigating the losses caused to the right holder by acts of infringement of trade secrets, the market supervision and administration department shall determine the losses in accordance with the actual losses suffered by the right holder due to the infringement. If the actual losses are difficult to calculate, they shall be determined according to the profits obtained by the infringer due to the infringement.

The actual losses suffered due to infringement can be calculated according to the following method:

(1) the product of the right holder whose products have lost sales due to infringement multiplied by the right holder’s reasonable profit for each product;

(2) If the total amount of sales volume reduction caused by the infringement of the right holder is difficult to determine, the amount shall be calculated based on the product of the sales volume of the infringing products multiplied by the reasonable profit of each product of the right holder;

(3) If it is difficult to determine the total amount of sales reduction caused by the infringement and the reasonable profit of each product of the right holder, the product of the sales volume of the infringing products multiplied by the reasonable profit of each infringing product shall be used;

(4) the difference between the expected profit that the infringing product could obtain under normal circumstances and the reasonable profit of the product using the same information after the infringement.

The remedial expenses incurred by the right holder to mitigate losses to business operations or business plans or to restore the security of computer information systems or other systems should be included in the actual losses suffered by the right holder due to infringement.

If a business secret of the right holder is obtained by improper means and has not been disclosed, used or allowed to be used by others, the amount of loss shall be determined based on the reasonable licensing fee of the business secret.

If a trade secret has become known to the public or has been lost due to an infringement of trade secrets, the amount of loss shall be determined by the market value of the trade secret. The market value can be determined based on the research and development costs of the trade secret, the trade secret license fee, the income from the implementation of the trade secret, the evaluation of a third-party market research organization, and the market share encroachment caused by the party’s infringement of the trade secret.

Chapter VII Supplementary Provisions

Article 39: Commercial information as referred to in these Regulations that falls within the scope of state secrets shall be protected in accordance with the provisions of the Law of the People’s Republic of China on Guarding State Secrets.

Commercial secrets that violate laws and regulations and harm national interests and social public interests are not protected by these regulations.

Article 40 Where commercial secrets involve data processing activities, the provisions of data security laws and administrative regulations shall also be complied with.

Article 41 Any act of infringement of commercial secrets committed outside the territory of the People’s Republic of China that disrupts the domestic market competition order or damages the legitimate rights and interests of domestic operators shall be handled in accordance with these Provisions and relevant laws.

Article 42 These Regulations shall enter into force on the date of promulgation, and the former State Administration for Industry and Commerce’s “Several Provisions on Prohibiting Acts of Infringement of Trade Secrets” shall be repealed at the same time.