Technical and economic progress does not stand still. The introduction of the latest technologies and techniques for the development of certain business areas, technical innovations and innovative approaches to solving commercial issues - all this is know-how, without which the successful development of the world economic community is impossible. In other words, this is what contributes to the normal coexistence and fruitful interaction between a large company and a developer.
What is know-how?
The English phrase know how has firmly entered our lives in the era of perestroika, when Western companies began to actively use their technologies to conquer the backward post-Soviet market.
The literal translation and the meaning of the word "know-how" - "I know how." Most often, this concept is used to determine the uniqueness of the technology of manufacturing something. However, this phrase is also applicable in determining the method or method of improving life by introducing a technological process.
This term is associated with a combination of technical, commercial, economic or legal potential, drawn up in the form of documentation, but not patented. This definition may mean the specifics of experience, skills and abilities, or the commercial secret of the production of something.
Know-how is useful knowledge in the field of something. Despite the fact that this information is the property of the enterprise, the named technological secret cannot be protected, such as, for example, a patent.
Features
Due to the ambiguity of this concept and its insecurity, the procedure for identifying classified information is significantly complicated. Therefore, when transferring ownership of its ownership to another interested party (purchase and sale of licensed commercial activities), all information should be clearly stated in the contract. The document should reflect the essence of know-how. This guarantees the exclusion of possible disputes and litigation.
In the framework of commercial activities, know-how is widely used in the preparation of licensing agreements or technical cooperation agreements. It is an integral part of the purchase and sale of a license.
Despite the fact that the transfer of the necessary secret information contributes to a significant increase in the total cost of agreements, the use of know-how helps to accelerate and simplify the process of organizing new production for the licensee. At the same time, the purchase of classified information obliges the seller to transfer all of it, to provide training for employees and the participation of licensor specialists in the launch of the production process and the subsequent monitoring of production activities.
Exclusive Rights
According to Art. 1466 IV of the Civil Code of the Russian Federation, the owner of the secrecy of production owns exclusive rights, if the know-how does not contradict the law. In the event that any individuals or legal entities illegally receive secret information about the technological process and contribute to the disclosure of this information, the violator must be held civilly liable.In court, he is obliged to compensate for losses incurred by the copyright holder as a result of the loss of exclusive rights to use know-how.
But while protecting exclusive rights, the know-how copyright holder cannot rely on patent protection. All interactions with third-party organizations for the transfer of trade secrets are based on mutual confidential obligations. It is this fact that indicates that it is much more difficult to prove confidentiality violations in court than to prove patent infringements.
Due to the lack of patent protection, when transferring rights to use know-how or when buying and selling licensed commercial activities, an agreement must be concluded between the parties to maintain the confidentiality of information. It should also clearly stipulate the possible compensation for losses in case of any violations.
Where does know-how apply?
In no case should this concept be associated directly with the technical side of production. The object of classified information may be considered organizational or technological information of the enterprise. Several developers can participate in the development of know-how at once. In this case, the use of new technology is not the exclusive right of an individual or enterprise.
If several enterprises at the same time came to the same technical solution, then all of them have the right to apply know-how. They try to keep the definition and concept of innovative technology related to trade secrets, or useful knowledge in the organizational sphere in confidentiality.
Signs of know-how
The key features of valuable classified information are experts:
- The commercial value of any secret knowledge in the field of technology should be of interest to competitors, the desire to acquire useful information.
- Information should be limited in access. If the commercial secret of the production process or technology legally reaches unauthorized persons, it is no longer secret information and loses its value.
- Know-how is information that is kept in commercial secrecy.
Secret Information Protection
Trade secrets in the field of technology and production are protected by special technical documents, accompanied by a know-how package. This practice ensures confidentiality and prevents theft by third parties. When selling a secret, the former owner is required to keep it for the duration of the licensed contract.
Problems of Russian copyright holders
Experts say that the Institute for the Protection of Trade Secrets in Russia does not work well in the field of know-how. This is evidenced by the weak formation of internal licensed trade and the low patent and licensing literacy of a wide range of managers, developers and businessmen. Insufficient standards of proper protection of classified information of the enterprise are also of no small importance. Even if its illegal use is discovered, it is practically impossible to prove the transfer.
Protective measures
There is no special law to protect know-how. And this is not only an all-Russian problem. Many developed Western and European countries also face the vulnerability and insecurity of sensitive information.
In our country, the protection of classified commercial information is carried out in accordance with the general rules of the civil code. In case of evidence of violation of rights, the injured party has the right to file a claim for damages. Nevertheless, it is extremely difficult to provide evidence for the theft of secret information and it is almost impossible to hold those responsible accountable. Researchers attribute this to the fact that the institute of secret production technologies in Russia is still very young and has just begun to develop.
In world practice, there is a clear concept and definition of what know-how is. This term is widely used in all areas of the national economy, legal, organizational and legal activities. It is worth noting that in developed countries, offenses related to industrial espionage or the disclosure of classified information are strictly punishable by law.