First, what is the difference between a confidentiality agreement (NDA) and non-disclosure, non-use and non-circumvention agreement (NNN)? For 99% of you who read this, I bet you are not ready to go to China and fight in a Chinese court to enforce your agreement. Their NNN agreement must normally be written to be enforceable in a Chinese court responsible for the Chinese defendant. This means that Chinese law should be the law in force, that the Chinese language should be the dominant language and that the exclusive jurisdiction should be placed before a Chinese court competent for your Chinese counterpart. The main reason for this China-centric approach is that you must be able to act quickly against your Chinese counterpart if it violates the NNN agreement with you. For the following reasons, any other approach will render the agreement unenforceable or delay the implementation of the agreement as long as the agreement becomes unnecessary, since it is proposed to develop a binding NNN treaty. The NNN agreement should be the entity to which you send confidential information directly. Assuming that the Chinese company is the right consideration, you should be sure to respect the terms of the NNN agreement. Send only information to the Chinese company. The agreement is synonymous with non-use, non-disclosure and non-circumvention. Unfortunately, not everyone uses the Chinese lawyers in my firm for their NNN agreements, and I say this for reasons that go beyond our non-registration fees. I say this because our Chinese lawyers receive a steady stream of emails from Western companies who want to keep us to attack their existing NDA or NNN agreement, and after checking those agreements, we refuse to take their case because their agreements are simply not good enough. How can they do that after signing the NDA and having the patent? Can you help me, and what are you going to recharge? I asked the Chinese side why they would not sign the agreement. They said, “We will not sign because we are doing this project to acquire the technology for ourselves.
We will not reveal anything else to anyone. Then I learned that non-use of these agreements is more important than non-disclosure. I told the Chinese side that if it didn`t sign the American company wouldn`t be back. The Chinese company finally signed, but I was also sure to tell the American company that from the moment the paper document was signed, it had to monitor what its Chinese counterpart was doing with its IP. Not much has changed since then, except that Chinese companies have become much smarter and are not specifying from the outset what they intend to do. More importantly, if your NNN agreement is to be applied in a Chinese court, but it is not in Chinese, the Chinese judge should order a translation of your agreement. If I were you, I would consider manufacturing your product elsewhere as quickly as possible, and we can also help you avoid replicating that IP theft in the next country where you are going to manufacture your product. Moving Your Manufacturing Out of China: The First Decisions.