The right to know-how production secret is a specific object of intellectual property. In Russian law, this right is protected by the provisions of the Civil Code. Know-how is also known as the “secret of production”, and this is its shortest and most suitable definition.
Meaning of the word
The word itself is a free transcription of the English version of the name know how, that is, "I know how." What does the know how holder know? He knows how to solve a production problem in a non-trivial way. The owner himself developed or acquired production technology, information about which was not in the public domain. Of course, it makes no sense to think that only one person in the world can think of this decision. However, all other owners and users of this technology also do not make public their know-how.
Place in law
The concept of “secret know-how production” is an important part of intellectual law. Know how is recognized information containing commercial value, if this information contains methods of conducting professional activities. It is important to keep in mind that know-how will not include information about which the right to information is established by law.
In addition, so that the state protects your right to know how, carefully monitor the observance of the secrecy regime. Trade secrets must first of all be under your own protection. If you do not take reasonable measures to protect it, the law will not be able to help you. The right to know-how production secret only applies to certain production methods. They may not be known to third parties at the moment.
The right to know-how production secret does not interfere with the inventive activity of mankind. None of the users of the existing know how methods will pay the tax to the inventor for using the fruits of his intellectual activity. The same inventions can be created independently and successfully applied, bringing profit to their owners. The right to know-how production secret is committed to protecting the interests of each of the owners of the original technique. For this, the main condition is that no one should know the secret of your production.
Know how protection
How can a secret be protected if the right to it exists, only while no one knows the essence of know how? Free dissemination of information can lead to large losses. Some restrictive mechanisms are needed, basically they are provided for by the Civil Code of the Russian Federation. The circumstances of the case may also include liability under labor law or even criminal law.
To obtain a patent, it is necessary to provide all the information on the operating time in the relevant authorities. Know-how works differently. You do not need to register trade secrets, renew a patent or dedicate someone in particular to production. Your rights to know how are protected by law, while unique technology is kept secret.
Problem know how
The importance of know how protection has been understood by people since very ancient times. History remembers extremely harsh ways to regulate the right to trade secrets. The production technology was so valuable to the owners that it was preferable to lose it than transfer it to third parties or share it with someone. The Greeks protected the secret of Greek fire. China zealously guarded the secret of its silk. Even the school curriculum includes Stephenson’s well-known instructive work on the defense of law in this area - Heather Honey.
In ancient times, know-how could have been directly related to survival, and not indirect, as now - through commercial damage. However, for the sake of economic gain and the exclusive right to know how, people could always take brutal measures. There were often cases when developers of a unique technique or invention were physically eliminated by their employers or competitors. Know-how owners wanted to feel that the production secret was not at risk of disclosure.
It happens that production brings good profit to the enterprise, but unscrupulous employees pass on the side of know-how information for an additional fee or benefit of a different nature. Such behavior can turn into a disaster for an entrepreneurial owner. However, not a single enterprise can afford to foresee everything and hire only trusted people. In this regard, the state is obliged, one way or another, to regulate the sphere of innovation.
How to save know how?
To ensure the safety of know how, the company proclaims the regime of the so-called "trade secret". Persons responsible for violating exclusively the right to develop are legally defined:
- Violators are persons who unlawfully become owners of information constituting a unique know how and divulging information to third parties against the will of the legitimate owner of the secret. They are also held liable if their actions are carried out contrary to the civil law and labor contract. Attempting to make a profit by disclosing production secrets by default makes a person a violator of the law.
- Persons with an obligation to maintain confidentiality of know-how. For example, these are rightholders who have become such on the basis of an agreement on the temporary alienation of the notorious exclusive right to the secret of know-how production. In addition, among such persons are licensors on the basis of an agreement on the granting of the corresponding right, as well as an employee who has become initiated into know-how because of the need to fulfill the duties assigned to him.
So, what can serve as a reason for prosecution or a violation of exclusive rights to a unique production technology?
- The resort to an illegal way to get information about know how.
- Unauthorized disclosure of classified information by the owner of exclusive rights.
- Use of know how for profit.
The Civil Code governs actions in these situations. Any government bodies and their employees are responsible for the trade secrets to which they have been devoted in the process of fulfilling their duties. Contractual liability is governed by the relevant provision of the Civil Code.
The Labor Code provides for disciplinary liability for non-compliance with the obligation to maintain confidentiality. The secret of know-how production is property and it has a clearly defined owner. You need to know about this.
The exclusive right to know-how production secret is valid if its main qualifying features are respected.
- Third parties are not privy to secret.
- They do not have legal access to know-how.
- The right holder intelligently controls the confidentiality of the unique technology.
- The information has actual commercial value or potential.
When we consider the right to know-how production secret, the peculiarities of the exclusive right are that they can be owned in parallel with any number of people if they have learned a unique technique in a bona fide way. Another feature that distinguishes know how is the unlimited duration of the right to it and legislative protection.
No matter how good this sounds, there is a less pleasant side to the question. According to the law, this right is forever lost by all its owners as soon as the know-how becomes public domain. For this moment, it does not matter how unlawful the actions that caused the loss of the secret of production were.
How about in other countries?
There is no exclusive right to the secret of know-how production in private international law. Different understanding of know-how. Usually it does not correlate at all with the sphere of intellectual law. Owners have a monopoly on this unique production technology, but it is actual and does not imply any protection of rights. The protection of trade secret information rests entirely with its owner.
In many countries, the legal system does not criminalize know-how. The main method of protection provided by the legislation of such countries is liability for violation of confidentiality, which must be proved. In order to punish the violator, it is necessary to provide exhaustive evidence that the owner of the trade secret maintained proper protection of information, and they were transmitted in confidence. And also there was a violation of the mentioned confidentiality or a threat appeared for it. As a result of a breach of confidentiality, the owner suffers losses or may incur them.
However, intellectual rights to the secret of know-how production are present in the legislation of the Russian Federation. The owner of know how can equally successfully be individuals and legal entities. The same rules apply to commercial and non-profit organizations. Foreign legal entities on the territory of the Russian Federation are subject to the same rules as throughout Russia.
What is know how?
What information can be classified as a production secret:
- information on the results obtained in the course of scientific research;
- for example, a private laboratory conducted a series of experiments and recorded the results in the relevant papers;
- technical and technological documentation;
- forecasts of market conditions;
- information about customers and suppliers;
- predicted trends for further technology development;
- materials in which studies of used production technologies are recorded;
- contract terms and prices, if they are at the negotiation stage or have entered the conclusion phase.
An interesting fact in the right to know-how production secret in the Russian Federation is as follows: the legislation does not have a clear and unambiguous list of what can be classified as trade secrets. The government clearly defines information that cannot be know-how. And the head of the enterprise is free to enter into the list of information about know how that which does not contradict the government list.
Transfer of rights
What needs to be done to transfer the secret rights to know-how?
When the transfer of know how occurs, the object of this operation is the totality of knowledge and experience associated with the secret technique. And also the documentation, because it must go from one leader to another.
Contracts between the parties may have different contents. The following requirements are most common:
- Products and their advertising should contain information that it was released under the license of the company that transmitted the secret of production.
- You can not sublicense this know-how, because this is fraught with its loss.
- It is forbidden to transfer information about know how to third parties while the contract is valid, and for a certain period of time after its expiration. The term is usually five years if such boundaries are deemed appropriate to the situation.
The know-how becomes known to the buyer at the stage of negotiations. Therefore, it would be reasonable for the seller to conclude a confidentiality agreement with the buyer in advance. Mandatory is the clause according to which the buying party undertakes not to use commercial secret if the contract is not signed. The transfer of secret rights to know-how must take place in a safe environment to maintain confidentiality.
What are the agreements on the transfer of rights to know how? The main point in such agreements is that they transfer the exclusive right to use the secret of production, and not at all the information itself. Such contracts may be of the following types:
- License agreement. It provides the exclusive right to use know how for the period provided for by the papers.
- Alienation Agreement. An agreement of this type implies the complete alienation of that very exclusive right for the indicated period of time of the present owner and its transfer to the other party. He must have a clause determining the remuneration and the procedure for its provision to the party transferring the right to know how. If this clause is missing, the contract shall be deemed invalid. The secret of know-how production is the work invested in its development. Work must be paid.
What you need to conclude a license agreement:
- subject of the contract, which should indicate the secret of production;
- information on how to use know-how;
The rights of the licensee are determined by the moments specified in the contract. It does not have a default right to intellectual property or means of individualization. The contract must be concluded in writing. You do not need to register it. Know how in itself is not subject to registration.
Know-how and mentality
When we discuss the right to the secret of know-how production in the Russian Federation, interesting facts come to our attention. Russians have a special relation to domestic and industrial ingenuity. Just noticing the original solution, most want to immediately test it in practice. However, the cult of ingenuity still does not have a great honor.
The common name was Kulibin, which can be heard with emotion of delight in his voice, and with contempt. As if by itself, it is implied that everyone should be able to do unusual things. Perhaps this is precisely what determines the special place that know how has taken in the Civil Code. In the end, each country has its own legislative norms that have national and territorial specifics.