Most companies develop new technical solutions in the course of their activities and want to keep this information confidential. These include production methods and business practices, images, diagrams, financial management, calculations, technology, how to do certain things, and the list goes on.
By keeping the information secret, the company manages to successfully compete on the market and not to give up its position, and perhaps even become a leader in a certain area due to the secret knowledge.
For example, know-how can be the secret of preparing a dish. Let's say you own a chain of French restaurants and your chef has come up with a new recipe for a dish. Naturally, you would want to keep it a secret from your competitors in case your customers appreciate the new French creation.
The law defines "know-how" as any kind of information, unknown to third parties, which has a certain commercial value. It is worth noting that in civil law the concepts of "know-how" and "trade secret" are considered to be certain synonyms and replace each other.
Production secrets have the following features that distinguish them from other objects of intellectual property:
The benefits include the following features:
Despite considerable advantages, the know-how mode also has some disadvantages:
Thus, there is always a risk that unscrupulous company employees may disclose non-public information to competitors. Therefore, it is imperative to inform them that they have access to sensitive information and will be held liable if it is disclosed.
In the legislation of the Russian Federation, the protection of know-how is regulated by several normative legal acts. The most important of these are:
The legal regime for the protection of information constituting a trade secret has both advantages and disadvantages, and before choosing such a regime, it is necessary to clearly determine the need for its introduction.
The registration of know-how in Russia is not stipulated by law. If you want to obtain a patent, the information will immediately cease to be classified, since FIPS publishes all applications submitted. The owner of secret data can only formalize the know-how in his company and thus establish a trade secret regime. This is the only way to protect such information. In order to do so, a number of specific steps must be taken:
Yes, it is possible. For a patent, the maximum legal protection by the state applies, but the information is disclosed. In the case of know-how, the degree of protection is always unclear and there is a great risk that such a solution will be found out by competitors or that they will get a patent on it. You can, however, combine these regimes.
It is necessary to establish a trade secret regime at the production site and apply for a patent. According to the law, if you revoke the previous application, you can file the next one and so on an unlimited number of times. The filing of the application establishes the priority date. The main thing is to withdraw the application before the expiration of 12 months (otherwise Rospatent will publish information about it) and then file a new application with the filing date of the first. Thus, you have time to finalize the invention, the information remains secret and inaccessible to third parties.
If your competitors somehow find out your trade secret and want to get a patent on a solution similar to yours, they will not be able to do it. You can go ahead with the patent application that has already been filed and be the first to get the patent, because you are the one who has the priority to get it.
The person to whom the exclusive right belongs may conclude an agreement on transferring the know-how (production secret) to another person within the framework defined by this agreement. The agreement may stipulate the period of time for which the classified information is transferred. At the same time, if this time is not specified in the agreement, any party may refuse to use the exclusive right, but is obliged to warn the other party not later than 6 months.
Only the owner of the know-how can transfer the rights to it. However, the conclusion of the contract does not lead to the disclosure of the data. The person who granted the right to use is obliged to keep the data confidential until the termination of the concluded contract. At the same time, the other party who received the data must keep it confidential for as long as the owner of the information retains exclusive rights to it.
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