Trade Secrets Act
 
 
1. Promulgated on 17 January 1996 and effective on 19 January
 
1996
 
 
2. Promulgated on 30 January 2013 and effective on 1 February
 
2013
 
 
3. Promulgated on 15 January 2020 and effective on 17 January
 
2020
 
 
Article 1
 
 
This Act is enacted to protect trade secrets, maintain industrial ethics and
 
order in
 
 
competition, and balance societal and public interests. Matters not provided for
 
in this
 
 
Act shall be governed by other
 
laws.
 
 
Article 2
 
 
The term " trade secret " as used in this Act shall mean any method,
 
technique,
 
 
process, formula, program, design, or other information that may be used
 
in the
 
 
course of production, sales, or operations, and also meet the following
 
requirements:
 
 
1. It is not known to persons generally involved in the information of this
 
type;
 
 
2. It has economic value, actual or potential, due to its secretive nature;
 
and
 
 
3. Its owner has taken reasonable measures to maintain its
 
secrecy.
 
 Article 3
 
 
If a trade secret is the result of research or development by an employee
 
during the
 
 
performance of employment, the trade secret shall belong to the employer
 
unless
 
 
otherwise provided for in a contract, and in which case the contract shall
 
prevail.
 
 
If a trade secret is the result of research or development by an employee
 
other than
 
 
during the performance of employment, the trade secret shall belong to the
 
employee.
 
 
However, if the trade secret is the result of utilizing the employer's
 
resources or
 
 
experience, the employer may make use of such a trade secret in the
 
employer's
 
 
business after paying a reasonable compensation to the
 
employee.
 
 
Article 4
 
 
Where one provides funding and contracts another to conduct
 
research or
 
 
development that resulted in a trade secret, the ownership of the trade secret
 
shall be
 
 
determined by the terms of the contract. If the ownership is not specified in
 
the
 
 
contract, the trade secret shall belong to the contracted party; however, the
 
contracting
 
 
party shall be entitled to make use of such trade secret within the contracting
 
party's
 
 
business.
 
 Article 5
 
 
Where a trade secret is the result of joint research or development by two or
 
more
 
 
parties, the respective shares in the ownership of the trade secret shall be
 
determined
 
 
by contract. In the absence of a contract, an equal share of the ownership
 
shall be
 
 
presumed.
 
 
Article 6
 
 
A trade secret may be assigned in whole or in part, or jointly owned. Any
 
use or
 
 
disposition of a jointly-owned trade secret shall be unanimously approved
 
by all
 
 
co-owners in the absence of a contractual provision. However, no co-owner
 
shall
 
 
refuse consent without proper justification. No co-owner may assign its share
 
of the
 
 
ownership without the consent of the remaining co-owners, unless otherwise
 
provided
 
 
for in a contract, and in which case the contract shall
 
prevail.
 
 
Article 7
 
 
An owner of a trade secret may grant a license to another for the use of the
 
trade
 
 
secret. The territory, term, contents, methods of use or other matters in
 
connection
 
 
with the license shall be determined by the contract between the
 parties.
 
 
The licensee as referred to in the preceding paragraph shall not
 
sub-license the
 
 
licensed trade secret without the consent of the trade secret owner. No
 
co-owner shall
 
 
grant a license to another for the use of the jointly-owned trade secret
 
without the
 
 
unanimous consent of the remaining co-owners. However, no co-owner shall
 
refuse
 
 
consent without proper justification.
 
 
Article 8
 
 
A trade secret shall not be used as the subject matter of a pledge or
 
compulsory
 
 
execution.
 
 
Article 9
 
 
No government employee shall use or disclose without due cause any trade
 
secrets of
 
 
others known or obtained through the performance of his official duties. No
 
parties,
 
 
representatives of the parties, advocates, expert witnesses, witnesses, and other
 
parties
 
 
related to the case shall use or disclose without due cause any trade secrets of
 
others,
 
 
known or obtained by virtue of a judicial investigation or proceeding. The
 
provision
 
 
of the preceding paragraph shall apply mutatis mutandis to arbitrators and
 
other
 
 
relevant parties involved in arbitration
 
matters.
 
 Article 10
 
 
Any of the following acts shall be deemed as a misappropriation of a trade
 
secret:
 
 
1. To acquire a trade secret by improper
 
means;
 
 
2. To acquire, use, or disclose a trade secret as defined in the
 
preceding item
 
 
knowingly or unknowingly due to gross
 
negligence;
 
 
3. To use or disclose an acquired trade secret knowing, or not knowing due to
 
gross
 
 
negligence, that it is a trade secret as defined in item
 
one;
 
 
4. To use or disclose by improper means a legally acquired trade
 
secret; or
 
 
5. To use or to disclose without due cause a trade secret to which the law
 
imposes a
 
 
duty to maintain secrecy
 
 
The term "improper means " as referred to in the preceding paragraph shall mean
 
theft,
 
 
fraud ,coercion, bribery, unauthorized reproduction ,breach of an
 
obligation to
 
 
maintain secrecy ,inducement of others to breach an obligation to maintain
 
secrecy, or
 
 
any other similar means.
 
 
Article 11
 
 
If a trade secret is misappropriated, the injured party may request for the
 
removal of
 
 such misappropriation. If there is a likelihood of misappropriation, a prevention
 
may
 
 
be requested. When requesting for a remedy available under the preceding
 
paragraph,
 
 
the injured party may request for the destruction or other necessary
 
dispositions of
 
 
products generated from the misappropriation or items used exclusively
 
in the
 
 
misappropriation.
 
 
Article 12
 
 
One who intentionally or negligently misappropriates another's trade secret
 
shall be
 
 
liable for damages. If two or more parties jointly misappropriate, such parties
 
shall be
 
 
jointly and severally liable. The right to claim for damages as referred to in
 
the
 
 
preceding paragraph shall be extinguished if the right is not exercised within
 
two (2)
 
 
years from the date when the owner of the right has knowledge of both the
 
act of
 
 
misappropriation and the identity of the party liable for the damages, or within ten
 
(10)
 
 
years from the act of
 
misappropriation.
 
 
Article 13
 
 
An injured party may choose any of the following provisions to request for
 
damages
 
 
in accordance with the preceding
 
Article:
 
 1.To make a claim based upon Article 216 of the Civil Code. However, if the
 
injured
 
 
party is unable to prove the amount of damages, the party may take as
 
damages the
 
 
amount of profits normally expected from the use of the trade secret
 
minus the
 
 
amount of profits earned after the misappropriation;
 
or
 
 
2.To request for the profits earned through the act of misappropriation from
 
the one
 
 
who misappropriated. However, if the one who misappropriated is unable to
 
prove the
 
 
costs or the necessary expenses, the total income gained from the
 
act(s) of
 
 
misappropriation shall be deemed the
 
profits.
 
 
Based on the provisions set forth in the preceding paragraph, if an
 
act of
 
 
misappropriation is found to be intentional, the court may, at the request of the
 
injured
 
 
party and by taking into consideration the circumstances of the
 
misappropriation,
 
 
award an amount greater than the actual damages, provided that the amount
 
shall not
 
 
exceed three times the amount of the proven
 
damages.
 
 
Article 13-1
 
 
Any person committing an act falling under any of the following circumstances
 
for
 
 
the purpose of an illicit gain for himself/herself or for a third person, or
 inflicting a
 
 
loss on the holder of a trade secret shall be sentenced to a maximum of 5
 
years
 
 
imprisonment or short-term imprisonment, in addition thereto, a fine between
 
NT$1
 
 
million and NT$10 million may be imposed:
 
 
1. Acquiring a trade secret by an act of theft, embezzlement, fraud,
 
threat,
 
 
unauthorized reproduction, or other wrongful means, or using or disclosing a
 
trade
 
 
secret so acquired.
 
 
2. Committing an unauthorized reproduction, usage, or disclosure of a trade
 
secret
 
 
known or possessed.
 
 
3. Failing to delete or destroy a possessed trade secret as the trade secret holder
 
orders,
 
 
or disguising it.
 
 
4. Any person knowingly acquires, uses or discloses a trade secret
 
known or
 
 
possessed by others is under circumstances prescribed in the
 
preceding 3
 
 
subparagraphs.
 
 
An attempt to commit a crime specified in the preceding paragraph is
 
punishable.
 
 
In case a fine is to be imposed, if the gain obtained by the offender
 
exceeds the
 
 
maximum fine, such fine may be increased within the extent of 3 times of the
 
gain.
 
 
Article 13-2
 
 Any person committing a crime prescribed in the first paragraph of the
 
preceding
 
 
article for the purpose of using the trade secret in foreign jurisdictions,
 
mainland
 
 
China, Hong Kong, or Macau shall be sentenced to imprisonment between 1
 
year and
 
 
10 years, in addition thereto, a fine between NT$3 million and NT$50 million may
 
be
 
 
imposed.
 
 
An attempt to commit a crime specified in the preceding paragraph is
 
punishable.
 
 
In case a fine is to be imposed, if the gain obtained by the offender
 
exceeds the
 
 
maximum fine, such fine may be increased within the extent of 2 to 10 times
 
of the
 
 
gain.
 
 
Article 13-3
 
 
Prosecution for a crime specified in Article 13-1maybe instituted only
 
upon a
 
 
complaint.
 
 
The filing or withdrawal of a complaint against one of several co-offenders shall
 
not
 
 
be considered to be a filing or withdrawal of a complaint against the
 
others.
 
 
In case a civil servant or a former civil servant who knows or possesses others’
 
trade
 
 
secrets within the scope of his/her authority or employment and intentionally
 
commits
 
 
a crime prescribed in the preceding 2 articles shall be sentenced to the
 punishment
 
 
prescribed for such an offense by increasing it up to one
 
half.
 
 
Article 13-4
 
 
Where the representative of a juristic person, the agent, employee or any other
 
staff of
 
 
a juristic person or natural person commits any of the crimes prescribed in
 
Article
 
 
13-1 or 13-2 in the course of business, not only the actor, but the juristic person
 
or the
 
 
natural person shall be punished with the fine prescribed in the Article.
 
However, if
 
 
the representative of a juristic person or natural person has done his/her
 
utmost to
 
 
prevent a crime from being committed, the juristic person or natural person
 
shall not
 
 
be punished.
 
 
Article 13-5
 
 
An unrecognized foreign juridical person may file a complaint, initiate a
 
private
 
 
prosecution, or institute a civil suit in respect of matters governed by this
 
Act.
 
 
Article 14
 
 
To try trade secrets suits, the court may establish a special tribunal or
 
appoint a
 
 
designated person(s) to administer the case. If assertions or defenses
 
advanced by
 
 parties to a litigation relate to trade secrets, and at the request of the parties,
 
the court
 
 
may, as it deems appropriate, close the trial to the public and/or restrict access
 
to the
 
 
files of the litigation related information.
 
 
Article 14-1
 
 
A prosecutor investigating a trade secret case may, if he/she deems it
 
necessary, issue
 
 
an investigation confidentiality protective order to the suspects, the
 
defendants, the
 
 
victims, the complainants, the agents ad litem, the defense attorneys, expert
 
witnesses,
 
 
witnesses, or other associated persons having access to the investigation
 
contents.
 
 
The person(s) subject to the investigation confidentiality protective order must
 
not
 
 
engage in the following acts in respect of the investigation
 
contents:
 
 
1. Usage for purposes other than the investigation procedures;
 
and
 
 
2. Revealing contents to the person(s) not subject to the investigation
 
confidentiality
 
 
protective order.
 
 
The provisions as set forth in the preceding paragraph shall not apply to the
 
person(s)
 
 
subject to the investigation confidentiality protective order who has already
 
acquired
 
 
or possessed the investigation contents prior to the
 
investigation.
 
 Article 14-2
 
 
An investigation confidentiality protective order shall be issued in writing or
 
verbally.
 
 
Where the order is issued verbally, the person(s) it is issued to shall be
 
notified in
 
 
person and a recordation thereof shall be made. A trade secret owner shall be
 
afforded
 
 
an opportunity to express opinions. The order in writing shall be produced
 
within
 
 
seven days.
 
 
The order in writing as set forth in the preceding paragraph shall be served
 
upon the
 
 
person(s) subject to the investigation confidentiality protective order
 
and a
 
 
notification thereof shall be made to the trade secret owner(s). Prior to
 
serving and
 
 
notification, the trade secret owner(s) shall be afforded opportunities to
 
express
 
 
opinions. This will not apply where the trade secret owner(s) has already
 
been
 
 
afforded opportunities to express opinions pursuant to the provisions of the
 
preceding
 
 
paragraph.
 
 
Where it is issued in writing, the order takes effect on the day it is served
 
upon the
 
 
person(s) subject to the investigation confidentiality protective order. Where the
 
order
 
 
is issued verbally, it takes effect at the time the notification thereof is
 
made.
 
 An investigation confidentiality protective order shall clearly record the
 
following
 
 
items:
 
 
1. The person(s) subject to such
 
order;
 
 
2. The investigation contents that should be kept
 
confidential;
 
 
3. The prohibited or restricted acts as stipulated in Paragraph 2 of the preceding
 
article;
 
 
and
 
 
4. The consequences of violating the
 
order.
 
 
Article 14-3
 
 
During the investigation, if the duty of confidentiality is extinguished or if it
 
is
 
 
necessary to amend the contents of the order, the prosecutor may ex officio
 
cancel or
 
 
amend his/her investigation confidentiality protective
 
order.
 
 
If the deferred prosecution or non-prosecution is finalized for a case or if part
 
of the
 
 
investigation confidentiality protective order is not within the scope of the
 
prosecution,
 
 
the prosecutor may ex officio or upon request by the person(s) subject to the
 
order,
 
 
cancel or amend his/her investigation confidentiality protective
 
order.
 
 
The prosecutor cancelling or amending the investigation confidentiality
 
protective
 
 order pursuant to the preceding two paragraphs may afford the person(s)
 
subject to
 
 
such order and the trade secret owner(s) opportunities to express
 
opinions. The
 
 
cancelling or amending disposition shall be made in writing and served
 
upon the
 
 
person(s) subject to the order and the trade secret
 
owner(s).
 
 
After a case is being prosecuted, the prosecutor shall notify the trade secret
 
owner(s)
 
 
and the person(s) subject to the investigation confidentiality protective order
 
of the
 
 
order’s involvement in the effect of the prosecution and its scope, as well as
 
of the
 
 
rights and interests associated with the confidentiality preservation order
 
and the
 
 
investigation confidentiality protective order. The trade secret owner(s) or
 
the
 
 
prosecutor may, pursuant to the provisions of the Intellectual Property
 
Case
 
 
Adjudication Act, file a request with the court for the issuance of a
 
confidentiality
 
 
preservation order. The investigation confidentiality protective order within the
 
scope
 
 
of the prosecution shall, within the scope of a motion, lose its effectiveness
 
on the
 
 
date a ruling granting a confidentiality preservation order in investigation
 
becomes
 
 
final.
 
 
After a case is being prosecuted, if the trade secret owner(s) or prosecutor
 
does not
 
 file a request with the court for the confidentiality preservation order within 30
 
days
 
 
from the day the action case has been pending to court, the court may, upon
 
request by
 
 
the person(s) subject to the confidentiality protective order or the prosecutor,
 
cancel
 
 
the investigation confidentiality protective order. The investigation
 
confidentiality
 
 
protective order that is involved in the effect of the prosecution and its scope
 
shall,
 
 
within the scope of cancellation allowed for by the court, lose its effectiveness
 
starting
 
 
from the date on which a court ruling becomes
 
final.
 
 
Prior to finalizing its ruling, the court shall consult the trade secret owner(s)
 
and
 
 
prosecutor. The ruling as set forth in the preceding paragraph shall be served
 
upon the
 
 
trade secret owner(s), the person(s) subject to the investigation
 
confidentiality
 
 
protective order, and the
 
prosecutor.
 
 
The person(s) subject to the investigation confidentiality protective order or the
 
trade
 
 
secret owner(s) may petition the prosecutor’s ruling as set forth in Paragraphs 1
 
and 2.
 
 
The prosecutor, the person(s) subject to the investigation confidentiality
 
protective
 
 
order, or the trade secret owner(s) may file an interlocutory appeal against the
 
court
 
 
ruling as set forth in Paragraph
 5.
 
 
The provisions in Articles 403 through 419 of the Code of Criminal Procedure
 
shall
 
 
apply mutatis mutandis to the petition and interlocutory appeal procedures as set
 
forth
 
 
in the preceding paragraph.
 
 
Article 14-4
 
 
A person violating an investigation confidentiality protective order shall be
 
punished
 
 
by imprisonment for up to three years, short-term imprisonment, and/or a fine of
 
up to
 
 
NT$1 million.
 
 
The preceding paragraph shall apply where the violation of the
 
investigation
 
 
confidentiality protective order occurs in other countries, China, Hong
 
Kong, or
 
 
Macau, regardless whether the offense is punishable or not under the law of
 
the land
 
 
where the crime is committed.
 
 
Article 15
 
 
A foreign national's trade secret(s) will not receive protection in the R.O.C., if
 
the
 
 
foreign national's home country does not conclude with the ROC an
 
international
 
 
treaty for protection of trade secret(s), or a treaty or an agreement for
 
reciprocal
 
 
protection of trade secret(s), or does not provide protection to the trade secrets
 
owned
 
 by R.O.C. nationals.
 
 
Article 16
 
 
This Act shall come into force from the date of
 
promulgation.