A confidentiality preservation order is a court order, issued upon the request of a trade secret holder during litigation, that prohibits the use or disclosure of trade secrets included within the evidence of such litigation, thereby protecting the trade secret.

 

Under Article 11, Paragraph 1 of the Intellectual Property Case Adjudication Act (the "Act"), prior to its amendment, only the trade secret holder or a third party could apply to the court for a confidentiality preservation order.

 

In past judicial practice, when the court deemed it necessary to issue a confidentiality preservation order to facilitate litigation involving materials containing trade secrets, the court would instruct the parties or third parties to file a motion for such an order. In actual practice, some parties would agree to file the motion while deliberately limiting the scope of the order. For example, one method employed involved restricting access to the order to the opposing company’s attorneys but excluded the opposing company’s legal representative, thereby hindering adequate internal communication and impairing the opposing party’s defense. To address this, Paragraph 3 of Article 36 of the amended Act, effective August 30, 2023, allows the opposing party or any party to request the court to issue a confidentiality preservation order against persons not already subject to such an order, provided the court first hears the opinions of the parties or third parties.

 

For cases involving the application of both old and new laws, Article 75, Paragraph 1 of the amended Act provides that the applicable law in such cases is the law that was in effect on the date the case was filed. As such, if the case was filed before the amendment’s effective date, the earlier provisions apply. However, in Civil Ruling 112-Tai-Sheng-Zi No. 1475, issued by the Supreme Court on January 18, 2024, the Court held that if a case was pending before the amendment, the court may, upon the request of a party or opposing party and after hearing the opinions of the parties or third parties, issue a confidentiality preservation order against a person not already subject to such an order.

 

In another case, the petitioner cited the above Supreme Court ruling, arguing that although the pre-amendment provisions applied, Article 36, Paragraph 3 of the amended Act could be applied by analogy. The petitioner further argued that the respondent could not apply for a confidentiality preservation order applicable to the petitioner’s litigation agent while excluding the petitioner’s legal representative. However, in Civil Ruling 115-Min-Mi-Ching-Shang-Zi No. 1, issued by the Intellectual Property Court on June 12, 2026, the court, while acknowledging that Article 36, Paragraph 3 of the amended Act could be applied by analogy, ultimately rejected the petitioner’s argument.

 

The Intellectual Property Court reasoned that, as of February 26, 2026, it had issued an interim judgment finding that the respondent’s products fell within the literal scope of Claim 1 of the disputed patent. At such stage, the court was considering the petitioner’s claims for damages, exclusion, prevention of infringement, and destruction, and was awaiting confirmation from both parties’ agents ad litem as to whether the respondent’s evidence was sufficient to determine the scope of damages. If the respondent had objections, it could note the names of the underlined products and corresponding dates, and the court would determine the next steps accordingly. Subsequently, the court found no need to issue a confidentiality preservation order applicable to the petitioner’s legal representative.

 

In summary, the prevailing view appears to be that courts may apply the amended Act by analogy to cases pending before the implementation of such amendments. However, the appropriate scope of persons subject to a confidentiality preservation order in specific cases remains an issue for further observation.