Page:ECONOMIC AND TRADE AGREEMENT BETWEEN THE GOVERNMENT OF THE PEOPLE'S REPUBLIC OF CHINA AND THE GOVERNMENT OF THE UNITED STATES OF AMERICA.pdf/3



2. China shall define “operators” in trade secret misappropriation to include all natural persons, groups of persons, and legal persons.

3. The United States affirms that existing U.S. measures afford treatment equivalent to that provided for in this Article.

Article 1.4: Scope of Prohibited Acts Constituting Trade Secret Misappropriation
1. The Parties shall ensure that the scope of prohibited acts subject to liability for trade secret misappropriation provides full coverage for methods of trade secret theft.

2. China shall enumerate additional acts constituting trade secret misappropriation, especially:

(a) electronic intrusions;

(b) breach or inducement of a breach of duty not to disclose information that is secret or intended to be kept secret; and

(c) unauthorized disclosure or use that occurs after the acquisition of a trade secret under circumstances giving rise to a duty to protect the trade secret from disclosure or to limit the use of the trade secret.

3. China and the United States agree to strengthen cooperation on trade secret protection.

4. The United States affirms that existing U.S. measures afford treatment equivalent to that provided for in this Article.

Article 1.5: Burden-Shifting in a Civil Proceeding
1. The Parties shall provide that the burden of production of evidence or burden of proof, as appropriate, shifts to the accused party in a civil judicial proceeding for trade secret misappropriation where the holder of a trade secret has produced prima facie evidence, including circumstantial evidence, of a reasonable indication of trade secret misappropriation by the accused party.

2. China shall provide that:

(a) the burden of proof or burden of production of evidence, as appropriate, shifts to the accused party to show that it did not misappropriate a trade secret once a holder of a trade secret produces:

(i) evidence that the accused party had access or opportunity to obtain a trade secret and the information used by the accused party is materially the same as that trade secret; 1-2

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