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27 July 2015
Know-How in the form of operational information and data lies at the heart of a business and this Know-How forms the back bone of the application, use and commercialisation of the other forms of intellectual property within an organisation. For example, the patents protecting your products are used together with the data packs which contain the detailed information which is used to manufacture the products.
Know-how can be defined as “confidentially held”, or better, “closely held” information in the form of unpatented inventions, formulae, designs, drawings, procedures, manufacturing data packs and methods, together with accumulated skills and experience in the hands of a company’s employees. Know-How not only assists companies with the manufacture of its products and rendering of its services, but also constitutes a competitive advantage.
Far too often the recordal and protection of Know-How is neglected by companies. Frequently, valuable Know-How of a business lands up in the hands of a few key employees and the employer has little knowledge, possession or control of such valuable Know-How. This exposes companies to industrial espionage, loss of a valuable asset or duplication of research and development.
In most instances a significant amount of time or money has been incurred to develop and create such Know-How, yet the management and control thereof is neglected. If Know-How is not adequately managed not only is a company exposed, but the value of the Know-How can’t be determined and unlocked.
Know- How can acquire additional protection if it stays secret. A trade- secret is Know-How which is secret, and if shared such sharing must be done in a restrictive and confidential manner and which imposes an obligation on the receiving party to keep it secret.
Certain kinds of Know-How are inherently confidential. This will be the case if the Know-How is confidential in nature, it is kept confidential or, in the case where it is disclosed to another party, it is only disclosed in circumstances which makes it clear that the Know-How is to be treated as being confidential.
You need to determine how to protect your Know-How and how to use it without undermining the secrecy which makes it valuable in the first place.
Know-How can become lost to an organisation where the diligent recordal of the Know-How is not managed. In order to protect and manage Know-How, it is necessary to develop standard operating procedures, which will be continuously applied in all projects so as to maximise the capturing of Know-How. Summaries of the Know-How should be periodically circulated to management.
The Commercial Department at DM Kisch is dedicated to helping you to protect your Know-How as part of those intangible assets that help you to stand out from your competitors. We are able to advise clients on document retention and security policies; confidentiality and non-disclosure agreements; and assisting clients with enforcing the protection of their Know-How.
For more information, please contact:
Director & Head of Commercial Department
Tel: +27 11 324 3025
Author: Kevin Dam