How do I protect my trade secret, know-how or confidential information?

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Know-how is a term for practical knowledge on how to accomplish something, as opposed to "know-what" facts"know-why" scienceor "know-who" communication. Know-how is often tacit knowledgewhich means that it is difficult to transfer to another person intellectual property protection for trade secrets and know-how means of writing it down or verbalising it.

Dubickis and Gaile-Sarkane states that the performance of know-how transfer is affected by accuracy of the stated aim, applied teaching, learning and assessment methods and both internal and external environment characteristics of the stakeholders involved in the process. In the context of industrial property now generally viewed as intellectual property or IPknow-how is a component in the transfer of technology in national and international environments, co-existing with intellectual property protection for trade secrets and know-how separate from other IP rights such as patentstrademarks and copyright and is an economic asset.

The inherent proprietary value of know-how lies embedded in the legal protection afforded to trade secrets in general law, particularly, "case law". The "trade secret law" varies from country to country, unlike the case for patents, trademarks and copyright for which there are formal "conventions" through which subscribing countries grant the same protection to the "property" as the others; examples of which are the Paris Convention for the Protection of Industrial Property and the World Intellectual Property Organization WIPOunder United Nations, a supportive organization designed "to encourage creative activity, [and] to promote the protection of intellectual property throughout the world".

A trade- secret may be defined as [4]. For purposes of illustration, the following may be a provision in a license agreement serving to define know-how:.

Show-how is a diluted form of know-how as even a walk-through a manufacturing plant provides valuable insights to the client's representatives into how a product is made, assembled or processed. Show-how is also used to demonstrate technique. An enlarged program of show-how is the typical content of Intellectual property protection for trade secrets and know-how Assistance Agreements where the licensor firm, if one is involved, provides a substantial training program to the client's personnel on-site and off-site.

There are two sets of agreements associated with the transfer of know-how agreement: The initial need for "disclosure" is due to the requirement of a licensee firm to know what is the specific, unique or general "content" of the know-how that a licensor firm possesses which promises value to the licensee on entering into contract.

Disclosure also aids the potential licensee in selecting among competitive offers, if any. Such disclosures are made by licensors only under non-disclosure or intellectual property protection for trade secrets and know-how agreements in which there are express undertakings that should the ultimate license not materialize, the firm to whom the intellectual property protection for trade secrets and know-how is made will not reveal - and equally important - by any manner apply, any part of the disclosed knowledge which is not in the public domain or previously known to the firm receiving the information.

Non-disclosure agreements are undertaken by those who receive confidential information from the licenseerelating to licensed know-how, so as to perform their tasks. Among them are the personnel of engineering firms who construct the plant for the licensee or those who are key employees of the licensee who have detailed access to disclosed data etcetera to administer their functions in operating the know-how-based plant.

These are also in the nature of confidentiality agreements and carry the definition of know-how, in full or truncated part, on the need-to-know basis. Outside usage in terms of industrial property, know-how is viewed as procedural knowledge which term also reveals its nature. Under English law, employees have a duty of good faith and fidelity until their employment ceases whereby only the former still applies.

It is sometimes unclear what forms "know how" that was divulged to an employee in order to carry out their functions and then becomes their own knowledge rather than a secret of their previous employer. Some employers will specify in their employment contracts that a " grace period " will apply to know how that starts when a person leaves them as an employee.

Specifying exactly what information this includes would increase the likelihood of it being upheld in court in the event of a breach, i. From Wikipedia, the free encyclopedia. This article needs additional citations for verification. Please help improve this article by adding citations to reliable sources. Unsourced material may be challenged and removed.

September Learn how and when to remove this template message. This section does not cite any sources. Please help improve this section by adding citations to reliable sources. Transfer of know-how based on learning outcomes for development of open innovation. Retrieved from " https: Intellectual property law Licensing. Articles needing additional references from September All articles needing additional references All articles with unsourced statements Articles with unsourced statements from September Views Read Edit View history.

This page was last edited on 24 Marchat By using this site, you agree to the Terms of Use and Privacy Policy. Look up know-how in Wiktionarythe free dictionary.

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Trade secret law or tort law protects valuable business information from misappropriation by others. The main requirement is that the information must be kept a secret by its owner.

Any kind of information, ranging from manufacturing know-how, formulas or devices to marketing intelligence can be protected as a trade secret. A misappropriator can be convicted to pay damages or to cease using the trade secret information. Trade secrets are a form of intellectual property, but trade secret protection does not offer rights comparable to those offered by copyright, patent or trademark laws.

In most countries, trade secret misappropriation is regarded as a specific form of unfair competition. Some countries have specific laws on the protection of confidential business information. Any kind of information can be protected as a trade secret.

Something qualifies for trade secret protection if it is kept a secret, and there is economic value because of the secrecy.

Because there often is no specific law on trade secrets, it is hard to give a definition of the things that can be protected as a trade secret. Trade secret protection has successfully been claimed for formulas, manufacturing know-how, compilations of information such as customer lists , bid prices, computer programs and technical designs.

Even physical devices, as opposed to mere information, can in theory be protected as a trade secret. The most common type of knowledge protected with trade secrets is know-how.

Because it is usually rather specifically tied to a particular production process or type of product, and so ages rather quickly, a patent on know-how often is not very valuable. An important requirement for trade secret protection is that the information should provide an economic advantage over competitors because it is kept a secret. The value of for example the secrecy of the formula for Coca-Cola is evident: A trade secret is only protected if it is in fact kept a secret by its owner.

Public information cannot be protected as a trade secret, no matter how economically valuable it is. To qualify for trade secret protection, the owner of the information needs to maintain reasonable precautions to keep the information secret. It is not necessary to take extreme measures, such as storing the information in a vault surrounded by armed guards. On the other hand, putting the information on a notice board visible from the lobby is insufficient, since any visitor entering the lobby can read the information.

A related requirement is that the owner of information needs to prove that he did in fact take the necessary precautions. There are a few common practices that are very helpful in this regard. With a non-disclosure agreement, the owner of a trade secret can share information with a third party without damaging the secrecy of the information. A nondisclosure agreement NDA is a contract in which it is agreed to keep certain information secret. Often an NDA is single-sided: An NDA can also be mutual or double-sided: Often a requirement is that such information must be labeled as "confidential" or must contain a reference to the NDA.

Another option, especially for oral disclosures, is to later send the receiving party a letter pointing out that the contents of the disclosure is to be regarded as confidential. Trade secrets are protected against misappropriation, the unauthorized taking or copying of trade secret information.

Misappropriation usually is a tort and can under certain circumstances be a criminal act. Misappropriation covers illegal acts, such as wiretapping or theft. But also improper acts that might strictly speaking legal can qualify as misappropriation. For example, in a famous US lawsuit on trade secret theft, a chemical company was building a plant in which a secret process was to be used. At some point during the construction it was possible to look through the roof to see details of the process.

A competitor hired a small plane to fly over the plant and took photos. Although flying over someone's property is not trespassing, this act was still held to qualify as misappropriation because it was performed explicitly for the purpose of circumventing the precautions taken by the chemical company to protect its secret process. Misappropriation can occur when a confidential relationship is breached. If someone receives information under NDA and then reveals this information to others, he violates the NDA and so is guilty of misappropriation of the trade secret information.

But breach of confidentiality can also occur even if no NDA was signed. The circumstances might make it clear that a confidential relationship exists. For example, a contractor who is asked to submit a quotation to build a certain product should normally consider the information regarding the product to be confidential.

At the same time, the person soliciting the quotations should know that these quotations should be kept confidential. Knowing the quotations of his competitors enables a contractor to lower his price to have a bigger chance of getting the contract. Someone who misappropriated a trade secret is liable for damages. Also, the owner of the information can apply for an injunction to stop him from using the information. The misappropriation may have resulted in loss of the trade secret status.

Then an injunction is often limited in time to the "lead time" obtained by the misappropriator. That is, the court tries to determine how long it would have taken to independently come up with the same information, and forbids the misappropriator to use trade secret information for that period. If in the meantime a lot of different people have legitimately acquired the protected knowledge, the court is less likely to award an injunction. The only remedy then is a compensation for the damages suffered by the loss of trade secret status.

These damages can be computed as the profit made by the misappropriator. Trade secret protection does not extend to someone who obtained the same information from another source. A customer list may qualify as a trade secret, but a competitor may have compiled the same list independently for example, if the number of potential customers is limited.

Also, the information could have been obtained from a public source, which means that no trade secret misappropriation occurred. This applies also if the information can be derived from a product sold by the information owner, unless the product was sold under NDA. Loss of trade secret status occurs when the secret is published.

This may happen even if the publication was unauthorized. There are many ways in which this can occur. For example, a trade secret owner may publish the secret in an academic journal, in a newspaper or in any other forum.

In some cases selling a commercial product that embodies the secret also counts as disclosure of the secret. It normally does not matter whether the publication by the trade secret owner is intentional. If the owner accidentally publishes details of a trade secret in a brochure, the status is lost anyway. Someone other than the trade secret owner may also disclose the trade secret. For example, he might reverse engineer the product to learn how it works. This is normally allowed.

An exception would be that the product was sold under a contract that forbids reverse engineering, or that the product was handed over in confidence.

The information could have been made available to the public by someone who stole it from the owner. It is not clear whether this automatically removes the trade secret status of the information.

On the one hand, the information is now publicly available, but on the other hand this might seem unfair to the owner because the disclosure occurred against his wishes. Depending on how widespread the publication was e.

In many cases the misappropriated information is not published but instead used by the person who misappropriated it. This usually also occurs in secret and so does not affect the trade secret status of the information.

Both trade secret law and patent law can be used to protect an invention, although not at the same time. Patent law gives strong protection, even against independent re-invention, but requires publication of the invention. Trade secret law only protects against misappropriation. Trade secret protection is the principal alternative to patent protection. Like with patents, the owner of a trade secret can stop others from using his intellectual property. But unlike patents, the owner of a trade secret can only act against those who actually used his information.

Someone who independently came up with the same information does not infringe on the trade secret protection. A patent holder can stop anyone from making, using or selling the invention, even when the infringer developed the invention completely independently without using any information supplied by the patent holder.

An invention can be protected by a patent or as a trade secret, but not both. The details of an invention become public when the patent application for that invention is published. These details then can no longer be protected as a trade secret. However, it is possible to have a patented invention together with trade secret know-how on specific ways to implement or use the invention. However, the patent still needs to have a disclosure that is sufficiently clear and complete so as to enable a person skilled in the art to practice the invention.

In the USA, the patent must disclose the best mode of the invention known to the inventors at the priority date. So, leaving implementation details out of the patent application may result in the patent being invalid. If someone keeps an invention a trade secret, someone else may later independently re-invent it and apply for a patent.

The patent holder can then stop the earlier inventor because he infringes on the patent. Because the earlier inventor kept the information a secret, his use is not prior art.

In some countries, patent laws have limited exceptions on infringement for such a "secret prior use". Legal protection of trade secrets and know-how In this document What can be a trade secret Requirement to keep secret Non-disclosure agreements Misappropriation Publications of trade secrets Trade secrets and patents See also Crash course on patents: Requirements for patentability Crash course on copyrights: Requirements for copyright protection.

See also Patents Crash course on patents.