On 31 December 2019 the Legislative Yuan passed a third reading of amendments to the Trade Secrets Act, expressly stipulating that any unrecognised foreign juristic person may file a complaint for public prosecution, private prosecution or civil action pursuant to the Trade Secrets Act. In addition to solving inconsistencies in past judicial practice, the amendments establish the Protective Order in Criminal Investigation system (outlined below).

Who has the right to issue?

The prosecutor who investigates trade secret cases may issue a protective order in criminal investigation when it is deemed necessary for investigation.

Who is subject to a protective order in criminal investigation?

Suspects, defendants, victims, complainants and agents thereof, defence attorneys, expert witnesses and witnesses and other relevant persons who have access to the contents of the investigation.

Contents of a protective order in criminal investigation

Person(s) subject to a protective order in criminal investigation; investigation contents that will be kept confidential; a person subject to a protective order in criminal investigation will not use the content of the investigation for purposes other than performing investigation procedures and will not disclose it to a person who is not subject to a protective order in criminal investigation; and effect of violation.

Investigation contents that will be kept confidential

Trade secret owners will be given the opportunity to submit comments or provide a response.

Effect of a protective order in criminal investigation

Violators assume criminal liability.

Violation of the protective order in criminal investigation (regardless of whether the violation occurred domestically or abroad) will be punished with imprisonment for up to three years and/or a fine of up to NT$1 million.

Whether a protective order in criminal investigation can be changed or revoked

The prosecutor may change or revoke a protective order in a criminal investigation in the following circumstances: the reasons subject to confidentiality have become extinguished during the investigation; it is necessary to change the contents of the protective order in the criminal investigation; the case is subject to a final and irrevocable decision to defer the prosecution or not to prosecute; or the protective order in criminal investigation includes any part which is out of the effect of prosecution.

The court may revoke a protective order in criminal investigation if the trade secrets owner or the prosecutor fails to motion for a confidentiality preservation order to the court within 30 days from the date on which the case was pended at the court.

What can a trade secrets owner do?

Trade secret owners may: submit comments or provide a response on the issuance, revocation and change of the protective order in criminal investigation; file an objection against the prosecutor's revocation or changing of the protective order in the criminal investigation; motion to the court for issuing a confidentiality preservation order on the prosecution of the case; and file an appeal against the court's ruling to revoke the investigation confidentiality order.

Will the protective order in criminal investigation be affected after the case is prosecuted?

If a trade secrets owner or prosecutor motions to the prosecution court for a confidentiality preservation order within 30 days from the date on which the case was pended at the court, for the part of a protective order in the criminal investigation to which the prosecution effect extends, within the scope of the said confidentiality preservation order, it will become void when the court's ruling issuing said confidentiality preservation order becomes final and irrevocable.

If the trade secrets owner or prosecutor fails to motion to the prosecution court for a confidentiality preservation order within 30 days from the date on which the case was pended at the court, for the part of a protective order in criminal investigation to which the prosecution effect extends, within the scope of the protective order in the criminal investigation revoked by the court's ruling, it will become void when the court's ruling revoking said investigation confidentiality order becomes final and irrevocable.

Table 1. Protective Order in Criminal Investigation

In previous criminal investigation procedures of trade secrets cases, trade secret owners had to provide evidence of their ownership and explain confidential information, such as the content of the trade secrets, the research and development process and details of cooperation with other partners. Owing to inadequate legal protection, the evidence seized by the investigation and prosecution authorities and presented by trade secrets owners often risked being leaked during the investigation stage, causing them further injury.

The amendment to the Trade Secrets Act has established the Protective Order in Criminal Investigation system, which allows prosecutors to issue protective orders in criminal investigation on their own initiative during the investigation stage and restricts confidential information from being disclosed to others arbitrarily. As the rights and interests of trade secrets owners will be better protected and the protection of trade secrets strengthened, the amendments are a welcome development in Taiwan's regulation of trade secrets.