Attorney-at-Law Michael Horak, graduate engineer (Electrical Engineering), LL.M. (European Law)

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Know-how – FAQ

What is know-how?

Secret business and technical facts can be generally described as know-how. Know-how exists as long as the fact in question remains secret. The advantages of know-how include the following: no direct costs are connected with know-how, its “duration of protection” is unlimited and the content of know-how can be a competition advantage. As an important disadvantage, know-how does not grant any monopoly rights, and therefore serious legal difficulties might occur in case of a conflict, which would not occur in the case of registered protective rights.

How can know-how be protected?

Technical know-how can in principle be protected by means of a patent, which – in some countries, for instance the USA – would also be possible in the case of business know-how. Since patents or similar protective rights are published and therefore made known to the general public, and since their period of validity is limited, there has always been a need to keep secret certain technical or economic facts, i.e. know-how.

At the same time, however, know-how needs to be transferred, which requires a comprehensive non-disclosure contract with a recipient of know-how, since popular know-how can be used by third parties without any subsequent constraints. When know-how is to be exploited commercially, the non-disclosure contract is of central legal importance. Therefore, contractual penalties are usually high enough to deter from disclosure.

Can know-how be protected after the protective right has expired?

Since protective rights are published, they cannot be protected by means of know-how. A protective right does not typically comprise all know-how relating to one matter. Therefore, after the protective right has expired, know-how contracts play an especially important role in maintaining a position on the market.

What do we need to protect your know-how?

The central aspect of know-how protection concerns the non-disclosure contracts with all persons to whom know-how is to be disclosed to. Therefore, we need a rough description of the know-how and of the limitations concerning its disclosure.

If already existing know-how is to be transferred to third parties, the aim of the transfer, licensing fees, etc. are required in addition to the above-listed information. The details have to be agreed upon individually for each case.



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