Know-how

Know-how is a body of practical, unpatented information, resulting from experience and testing, which is secret, substantial and identified. This definition, drawn from European Union law on technology transfer agreements, is followed in contractual practice. Know-how covers manufacturing processes, formulas, methods, test data or commercial knowledge. It confers no monopoly, unlike an intellectual property right, and its value lies in its secrecy.

The three characteristics of know-how

First, it must be secret, meaning not generally known or readily accessible. Second, it must be substantial, in that it is useful for the manufacture or marketing of the products. Third, it must be identified, described in a sufficiently complete manner to verify that it satisfies the first two conditions. This identification, often carried out in a confidential annex or through a sealed deposit, is essential in the event of litigation. Undocumented know-how is difficult to protect and to value.

Protecting know-how

Know-how is protected mainly through trade secrets, governed by Articles L. 151-1 et seq. of the French Commercial Code, available on Légifrance. Protection requires the company to have taken reasonable measures to preserve secrecy: confidentiality clauses, access restrictions, document marking, employee training. Unlawful acquisition, use or disclosure gives rise to injunctions and damages. Know-how is also the subject of contracts: the know-how communication contract, mixed patent and know-how licences, and the confidentiality agreement.

Key points

In practice, know-how is often more valuable than the patents it accompanies, because it conditions the industrial implementation of the invention. Its protection rests on the internal organisation of the company and on the quality of its contracts with employees, partners and subcontractors. The firm assists companies in putting these measures in place and in misappropriation disputes, as presented on the page trade secrets attorney.