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IP Readings & Articles

Know How

Know-how can be defined as confidentially held, or better, 'closely-held' information in the form of unpatented inventions, formulae, designs, drawings, procedures and methods, together with accumulated skills and experience in the hands of a licensor firm's professional personnel which could assist a transferee/licensee of the object product in its manufacture and use and bring to it a competitive advantage. It can be further supported with privately-maintained expert knowledge on the operation, maintenance, use/application of the object product and of its sale, usage or disposition

The inherent proprietary value of know-how lies embedded in the legal protection afforded to trade secrets in general law, particularly, 'case law'. Know-how, in short, is "private intellectual property". The 'trade secret law' varies from country to country, unlike the case for patents, trademarks and copyright where there are formal 'conventions' through which subscribing countries grant the same protection to the 'property' as the others; examples of which are the Paris Convention for the Protection of Industrial Property and the World Intellectual Property Organization (WIPO), under United Nations, a supportive organization designed "to encourage creative activity, [and] to promote the protection of intellectual property throughout the world".

For purposes of illustration, the following may be a provision in a license agreement serving to define know-how:

Know-how shall mean technical data, formulae, standards, technical information, specifications, processes, methods, code books, raw materials, as well as all information, knowledge, assistance, trade practices and secrets, and improvements thereto, divulged, disclosed, or in any way communicated to the Licensee under this Agreement, unless such information was, at the time of disclosure, or thereafter becomes part of the general knowledge or literature which is generally available for public use from other lawful sources. The burden of proving that any information disclosed hereunder is not confidential information shall rest on the licensee.

WHAT IS SHOW-HOW?

Show-how is a diluted form of know-how as even a walk-through a manufacturing plant provides valuable insights to the client's representatives into how a product is made, assembled or processed. Show-how is also used to demonstrate technique.

An enlarged program of show-how is the typical content of Technical Assistance Agreements where the licensor firm, if one is involved, provides a substantial training program to the client's personnel on-site and off-site. (Note: such training does not imply any grant of 'license'.).