A New Draft Amendment To Taiwan's Trade Secret Law

Five years after its first amendment to adopt criminal penalties, Taiwan's Trade Secrets Law, enacted and promulgated in January 1996, is now preparing to embrace another amendment initiated by legislators in 2018. The proposed amendment, currently under deliberation by Taiwan's Legislative Yuan (equivalent to a parliament in other democracies) with a good chance of being passed this year, aims to achieve two objectives. Firstly, confidentiality protective orders will be available in criminal investigation proceedings to better safeguard trade secrets in dispute. Secondly, but no less important, non-Taiwanese trade secret owners will be accorded more complete protection than now, almost to the extent of national treatment. The details are as follows.

Confidentiality Protective Orders (CPO) in criminal investigation proceedings

An issue often encountered by prosecutors when investigating trade secret infringement cases is how to probe into matters around highly complex technologies without compromising the protection of the complainant's trade secret. As such, the mechanism of confidentiality protective order, as manifested in the following rules, is proposed to be introduced, in a bid to provide prosecutors with better procedural tools to delve into trade secret charges while deterring a second-time trade secret leak.

A prosecutor may, when he or she deems it necessary, issue a CPO to the suspect, the accused party, the infringed party, the complainant and/or its agent, a defense attorney, a court-appointed expert, a witness, or any other related persons, thereby imposing an obligation on such persons to keep confidential the information they are allowed to access during an investigation proceeding for a trade secret infringement charge. A CPO can be issued only on an ex officio basis. While the current draft amendment provides that a CPO shall be issued in the form of a written ruling, prosecutors suggest that a hearing transcript shall be deemed a legitimate form as well.

A person subject to a CPO, unless having obtained or possessed the information described in a CPO before the investigation proceeding commences, shall not (1) use the information for non-investigation purposes or (2) disclose the information to any person not subject to a CPO. A prosecutor may terminate or amend a CPO, either ex officio or upon a motion moved by a person subject to a CPO, under any of the following circumstances: (1) the cause for which the information...