Know How and Trade Secrets

Know how tends to be information that is valuable to a business even if just covers very basic information generated in your business. Examples of know how include:

  • pricing;
  • your insights into how to sell your products and services;
  • something developed over time, such as a way you carry out a particular procedure.

Know how may be essential to the development and use of a patents, but is not specifically mentioned in the patent to avoid it being published.

So there is good reason to keep know how confidential.

Know how often becomes part of the skill and knowledge individuals apply in their work for you, and by taking appropriate steps you can reduce the risk of that information being disclosed in a way that damages the business.

Trade secrets

Trade secrets tend to be business critical, such that they cannot be used other than by or for the owner.

Businesses are sometimes unaware that know how and trade secrets are a form of intellectual property that need to be protected.

How to protect know how and trade secrets

Protection of know how and trade secrets typically involves:

  • identifying what information is confidential, and making sure recipients are aware of its confidential nature;
  • deciding how to limit access to it – for example, Coca Cola’s recipe is a trade secret which is reportedly only ever know by 3 individuals working for the company;
  • marking information as confidential with appropriate notices;
  • concluding confidentiality agreements (or non-disclosure agreements / NDAs);
  • putting in place procedures to protect the information, for example by taking swift action to address unintended disclosures.

All businesses should adopt policies and implement procedures to protect their confidential information.

Agreements with employees and contractors should incorporate contractual terms, to encourage those with access to know how and trade secrets to maintain confidentiality.

Using a basic template confidentiality agreement is not recommended. There are many considerations beyond simply stating that information is confidential.

With know how and trade secrets prevention is better than cure because once the information is out in the public domain it loses its value.

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