Corporate Know-How, what it is.

According to the traditional definition, Know-how results therefore as that complex of knowledge and aptitudes, undisclosed and secret, patentable or not, which identify a “know-how” addressed to a given field within which the holder of that human capital operates and organizes his activity: Know-How is protected in Italy.
In Italy, in addition to the jurisprudential elaboration, it was the community discipline that also provided for the precise definition of the essential requirements of Know How.
Secrecy of knowledge is understood to mean that it is not generally known or easily accessible to experts and practitioners, that it has economic value as confidential, and that it is subject to appropriate measures to keep it so. It is not necessary that each individual piece of information be confidential, but it is relevant that, as a whole, the knowledge results from an elaboration by the person who holds it and that it is not known: in this way, the Know How acquires additional economic value over and above the individual elements that are part of it.

The Protection of Corporate Know-how.

The relevance of know-how and trade secrets as an added value in competition between companies is well established. This is especially true for Italy, in whose economy made up of many high-quality manufacturing firms, know-how plays a fundamental role.
The need to protect Know How and, therefore, corporate assets, has several points of connection with labor law, considering that this need cannot disregard the proper management of confidential corporate information and data by the company’s own personnel. This entails the need to determine what the perimeter of the employer’s power of control is, as well as to identify the most effective contractual tools to protect said employer needs.
Below are the most effective methods for legally protecting Know How.

How to protect Corporate Know-how

First of all, it is specified that Article 2105 of the Civil Code regulates the employee’s obligations to the employer during the continuance of the relationship, prohibiting conduct that, in addition to being likely to cause losses to the employer in economic and Know How terms, damages the fiduciary bond underlying the employment relationship.
In addition to this, there are a variety of mythologies to protect corporate Know-How, which we list below.

  • Remote control: distinguished into Direct control, Pretrial control;
  • Control of work tools and tools for recording access and attendance: control of the criteria for the use of work tools;
  • Adoption of a company policy: adoption of a behavioral policy to be adopted by all workers;
  • Defensive controls: controls aimed at ascertaining possible misconduct committed by the employee in the performance of work;
  • Whistleblowing: anonymous reporting, made by the employee, of wrongful acts committed by colleagues;
  • Non Disclosure Agreement (NDA): agreement between employer and employee to keep certain information confidential;
  • Exclusivity Agreement: is a clause designed to place on the employee the obligation to render services only to the employer so as to avoid any, even potential, conflict of interest with the employer itself;|
  • Garden Leave Clause: A clause under which the employer, without prejudice to the normal award of wages, exempts the employee, typically during the notice period, from rendering work performance.
  • Non-competition Agreement: A clause/agreement ancillary to the employment contract, generally affixed where “key personnel” are involved, which restricts, for a specified period of time after the termination of employment, the employee’s pursuit of professional activities in return for payment of a fee.

The Criminal Protection of Know How

Within the Italian legal system, the criminal protection of know-how has been mainly identified in Articles 622 and 623 of the Criminal Code, which respectively punish the disclosure or use of professional secrets or scientific or industrial secrets.
The asset subject to protection is represented by the possibility for the owner of the secret to use or exploit it, communicating it to third parties linked to him by a relationship of a lato sensu professional nature, having the guarantee that the trust placed in him will not be betrayed, except at the price of suffering criminal consequences.

SGHS Law Firm has great experience in protecting Corporate Know-How and assists multiple enterprises in this regard, do you need to protect your Konw-How? contact us!