Know-how and Trade Secrets

Sometimes valuable IP can reside in knowing how to do a particular process, even if there is nothing patentably novel in the process.  Such know-how may mean the difference between a manufacturer being able to manufacture a product or use a process without delay or having to spend months or even years experimenting to find the optimum conditions.  If this is the case, then the know-how is valuable and providing the know-how has been kept confidential, it can be licensed in a Know-How Agreement.

The protection given by a Know-How Agreement is limited; it does not protect the know-how as an absolute right, in the same way as a patent, so that if someone manages to reverse engineer the process (providing this reverse engineering does not involve any breach of confidentiality) then there is no restriction on that person using the know-how.  However, for complex processes, reverse engineering may in fact be almost impossible, and the know-how can be extremely valuable.

Trade Secrets

Trade Secrets are in many cases a form of know-how: they are the specialised information which is given to a person in order for them to perform a particular job.

It is essential that, if you wish to protect yourself against ex-employees using information which you consider to be confidential to your business, i.e. a trade secret, that the employment contract spells out clearly exactly what is and what is not a trade secret.