On 24 February 2026, the State Administration for Market Regulation ("SAMR") officially released the Provisions on the Protection of Trade Secrets ("PPTS"). The new regulation will come into effect on 1 June 2026.
1 20 March 2026CMS, China | China Released Provisions on the Protection of Trade SecretsChina Released Provisions on the Protection of Trade SecretsOn 24 February 2026, the State Administration for Market Regulation ("SAMR") officially released theProvisions on the Protection of Trade Secrets ("PPTS"). The new regulation will come into effect on 1 June2026.1. BackgroundIn 1995, the former State Administration for Industry and Commerce issued the Provisions onProhibiting Acts of Infringing Trade Secrets. The provisions were slightly revised in 1998 and remainedin force until now.As the SAMR recognized that these provisions could no longer meet the needs of trade secretprotection in the digital economy, it first issued a draft PPTS for public comment in 2020. The revisionwas then suspended to align with the 2025 amendments to the PRC Anti-Unfair Competition Law("AUCL"). In 2025, the SAMR solicited public comments on the PPTS again. On 24 February 2026, theSAMR ultimately released the PPTS officially.Based on the AUCL and the Provisions of the Supreme People's Court on Several Issues concerningthe Application of Law in the Trial of Civil Cases of Trade Secret Infringement ("Judicial Interpretationon Trade Secrets", effective 2020), the PPTS systematically elaborates on infringing acts, legalliabilities and other key matters. These revisions strengthen the application of the PPTS and provideenterprises with practical guidance for trade secret protection.2. Key Revisionsa) Elevation of jurisdiction and extraterritorial jurisdictionCurrently, acts of trade secret infringement are handled by departments at the county level orabove of the Market Supervision of Administration ("MSA"). However, in practice, trade secretcases often involve the determination of complex technical information. It imposes high demandson the professional competence and practical experience of law enforcement officers.Therefore, Article 3 of the PPTS stipulates that such cases shall generally fall under thejurisdiction of departments at the city level with districts or above of the MSA. Only with theapproval of the SAMR, the county level departments could handle the related cases.Furthermore, Article 29 of the PPTS explicitly establishes the extraterritorial effect of the PPTS.Trade secret infringements committed outside the PRC that disrupt the Chinese market or harmChinese businesses shall also be governed by the AUCL and relevant regulations. 2 20 March 2026b) Expansion of trade secret protection scopeArticle 10 of the AUCL defines trade secrets as commercial information that is not known to thepublic, has commercial value and is subject to confidentiality measures taken by the rights holder.For consistency with the superior law, the PPTS adopts this definition. Compared to the previousdefinition, the PPTS replaces the element "bringing economic benefits" with "having commercialvalue". This shift indicates that commercial value is not limited to direct economic gains.Any competitive advantage, such as cost reduction or shortened development cycles, shallconstitute "commercial value". Therefore, Article 7 of the PPTS explicitly includes interim results,failed experimental data and technical proposals within the scope of commercially valuableinformation. This article could ensure effective protection for enterprises' innovation outcomesthroughout their entire lifecycle.With reference to the Judicial Interpretation on Trade Secrets, Article 5 of the PPTS furtherclarifies the definitions of commercial information, which consists of technical information andbusiness information. Technical information includes information related to technology, such asstructures, raw materials, formulas, materials, samples, phototypes, processes, methods, data,algorithms, computer programs, etc. Notably, the PPTS also explicitly lists "codes" as technicalinformation. This addresses the protection needs of software and algorithm related trade secretsin the digital economy. Business information includes information related to business activities,such as ideas, management, sales, finance, plans, samples, customer information, data, etc.c) Refinement of confidentiality measuresWith reference to the Judicial Interpretation on Trade Secrets, Article 9 of the PPTS lists seventypes of reasonable confidentiality measures. These include:• executing non-disclosure agreements;• imposing confidentiality obligations on relevant personnel;• restricting access to confidential areas;• implementing divided management for trade secrets and their carriers;• managing related computer and network equipment; and• overseeing departing employees.Notably, the PPTS also innovatively introduces technical confidentiality measures tailored forremote work and cross-border collaboration scenarios. These include tiered access controls, datadesensitization, maintenance of operation logs, etc. This provision offers clear guidance forenterprises to establish and improve their full-process confidentiality system.d) Refinement of types of trade secret infringementRegarding acts of trade secret infringement, the PPTS lists four types of trade secret infringementfrom Article 10 to Article 13 grounded in the corresponding articles in the AUCL:(1) Acquiring trade secrets by improper meansBased on the AUCL, Article 10 of the PPTS not only lists improper means such as theft,bribery, fraud, and coercion but also, for the first time in an administrative regulation,includes electronic intrusion as an independent form of improper means. The scenarios of"electronic intrusion" include unauthorized access to a right holder’s digital office systems,obtaining trade secrets through technical means and unauthorized downloading, ortransmission of trade secrets to unauthorized network storage spaces or electronic devices. 3 20 March 2026(2) Disclosing, using, or permitting others to use trade secrets acquired by impropermeansUnlike the AUCL, Article 11 of the PPTS provides explicit definitions for "disclosure" and"use". "Disclosure" means leaking trade secrets to third parties or making them public."Use" means directly applying trade secrets, modifying them for application, or improvingbusiness operations based on them.(3) Disclosing, using, or permitting others to use trade secrets acquired in violationof confidentiality obligationsUnlike the AUCL, Article 12 of the PPTS explicitly lists the sources of confidentialityobligations. These include:• explicit contractual agreements;• implied obligations arising from business customs and the principle of good faith;• direct confidentiality requirements imposed on relevant parties who acquire trade secretsthrough commercial activities; and• unilateral confidentiality requirements imposed by the rights holder on employees andbusiness partners through internal regulations or reasonable protective measures.(4) Instigating, inducing, or assisting others in infringing trade secretsCompared with the AUCL, Article 13 of the PPTS further specifies three scenarios, i.e. directincitement or instruction, inducement by benefit, and providing facilities for infringement.This provision aims to regulate the improper practice in talent recruitment where employersexplicitly or implicitly require job applicants to bring trade secrets from their formeremployers as a condition of employment.e) Refinement of the criteria for determining third-party infringementWith reference to corresponding third-party infringement provisions in the AUCL, Article 14 ofthe PPTS stipulates that a third party who acquires, discloses, or uses a trade secret whileknowing or having reason to know that it was obtained through infringing activities shall bedeemed to have infringed the trade secret. Furthermore, the PPTS specifies the factors to beconsidered when determining "knowing or having reason to know". These factors include theconfidentiality level of business information, the legitimacy of the acquisition channels, thetransaction price, the relationship between the third party and the rights holder and industrycustoms. The clear listed factors could enhance MSA's practical enforceability and facilitate thestandardization of case criteria across different administrative law enforcement departments.f) Systematic enumeration of non-infringing actsArticle 15 of the PPTS enumerates four types of acts that generally do not constitute trade secretinfringement. These include independent research and development, reverse engineering,general knowledge or publicly available industry information, and disclosure for the purpose ofsafeguarding public interest. While these defenses have already been supported by judicialinterpretations and authoritative case law, the PPTS lists these acts systematically for the firsttime, hereby providing clearer legal certainty and guidance.g) Improvement of administrative proceduresIn practice, filings of administrative trade secret cases have often been impeded by ambiguousthresholds for case filing, unclear evidentiary standards, etc. The PPTS addresses these issuesby improving the provisions on following aspects. 4 20 March 2026(1) Case filing criteriaArticle 19 of the PPTS explicitly lists three conditions for initiating a trade secret relatedadministrative case, i.e. preliminary evidence proving an infringing act subject toadministrative penalties, competent jurisdiction and filing within the statutory limitationperiod.(2) Filing documentsArticle 17 of the PPTS requires that when filing a report, right holders must submit not onlypreliminary evidence of their ownership but also specific clues regarding the allegedinfringement. Article 18 systematically details the types of acceptable evidence and clues.Evidence includes documentation on the creation of the trade secret, its non-public nature,commercial value, confidentiality measures, etc. Specific clues cover channels throughwhich the alleged infringer accessed the secret, evidence of breached security measures,indications that the secret was actually acquired, proof of its disclosure or unauthorized use,etc.(3) Allocation of burden of proofArticle 20 of the PPTS maintains the requirement for rights holders to prove infringement.However, it lowers the evidentiary threshold. Rights holders are now only required toprovide preliminary evidence proving that the information used by the alleged infringer issubstantially identical to their trade secret, and the alleged infringer had the opportunity toaccess it. With these materials, the MSA then could determine infringement unless thesuspected infringer proves lawful acquisition or use. It alleviates the evidentiary burden onrights holders while safeguarding procedural fairness.(4) Appraisal institutions and expert opinionsArticle 22 of the PPTS introduces specific rules. Both rights holders and alleged infringersmay commission these institutions or experts with specialized knowledge to issueprofessional opinions on technical issues. This will assist the MSA in determining technicalfacts in trade secret cases, thereby ensuring enforcement accuracy, fairness, and efficiency.(5) Investigative measuresArticle 23 of the PPTS empowers the MSA to take five specific investigative actions, includinginspecting business premises, questioning relevant personnel, querying and copyingdocuments, seizing or sealing property and inspecting bank accounts. Notably, the authorityto inspect bank accounts enables the MSA to trace fund flows related to infringement,enhancing the precision of enforcement. Besides, the PPTS specifies strict internal approvalrequirements for the MSA when adopting such investigative measures. Moreover,investigative measures with a greater impact are subject to a higher level of internalapproval by the MSA. Meanwhile, it mandates that investigations shall minimize disruptionto normal business operations. This article ensures effective investigative powers whilepreventing their abuse.h) Enhancement of administrative penaltiesTo combat trade secret infringement, the MSA may order the cessation of infringing acts,confiscate the illegal gains or impose fines. Article 24 of the PPTS increases the maximum finefrom RMB 200,000 to RMB five million, aligning it with the AUCL.Meanwhile, Article 25 specifies four types of "cessation of infringing acts", including ceasing theuse of trade secrets, returning or destroying relevant carriers, destroying infringing products andeliminating the trade secrets. 5 20 March 2026Furthermore, Article 26 explicitly lists four scenarios constituting "serious circumstances" for thefine from RMB one to five million, including causing relatively large direct losses, significantadverse effects on business operations, endangering national or social public interests andcommitting trade secret infringement again within two years.3. ConclusionThe PPTS is constructing a more robust administrative protection system for trade secrets by referenceto the relevant superior laws and insights from judicial practice. After the implementation of the PPTS,more enterprises may be inclined to use administrative procedures to cease the spread of infringingactivities. Further, the PPTS serves as a critical benchmark for enterprises to refine their compliancewith trade secrets protection, including improving confidentiality systems, optimizing protectivemeasures, standardizing processes of confidential information, etc.In case you have questions or for further information, please contact the authors of this newsletter:This information is provided for general information purposes only and does not constitute legal or professionaladvice. Copyright by CMS, China.“CMS, China” should be understood to mean the representative offices in the PRC of CMS Hasche Sigle and CMSCameron McKenna Nabarro Olswang LLP, working together. As a foreign registered law firm in the PRC, we arenot licensed to practice PRC law. This applies to all foreign law firms in the PRC. CMS, China is a member of CMSLegal Services EEIG, a European Economic Interest Grouping that coordinates an organisation of independentmember firms. CMS Legal Services EEIG provides no client services. Such services are solely provided by themember firms in their respective jurisdictions.cms.law Disclaimer Privacy StatementCMS Hasche Sigle ShanghaiRepresentative Office (Germany)910 Park Avenue Central (PAC)688 Changde Road, Jing’an DistrictShanghai 200040, ChinaCMS Cameron McKenna LLP BeijingRepresentative Office (UK)Room 1405, West Tower, World Financial CentreNo.1 Middle East Third Ring Road, Chaoyang DistrictBeijing 100020, ChinaPanpan TangCounselCMS, ChinaT + 86 21 6289 6363E [email protected] LvJunior AssociateCMS, ChinaT + 86 21 6289 6363E [email protected]
