Short considerations on know-how in the light of the (EU) directive 2016/943

• Author: Maria-Magdalena Cardis
• Position: SSIF Romintrade S.A.
• Pages: 169-178

Bulletin of the Transilvania University of Braşov

Series VII: Social Sciences • Law • Vol. 10 (59) No. 1 - 2017

SHORT CONSIDERATIONS ON

KNOW-HOW IN THE LIGHT OF

THE (EU) DIRECTIVE 2016/943

Maria-Magdalena CARDIŞ1

Abstract: It is not uncommon to acknowledge that a Directive has as a

declared purpose to create the legal framework in order to solve the conflict

between the quick advance of technology and the rule of Law. It is also the

case of the current Directive, which tries to create the premises in order for

the member-states to adopt their own legislation so as to protect the valuable

information that is perceived as know-how. Considering that the concept has

no definition, the aim of this paper is to define the concept of know-how and

to distinguish it from the similar notion of trade secret, departing from the

already existent doctrine and legal provisions.

Key words: know-how; trade secret; acknowledgement; permanent

evolution; protection.

1. Introduction

The technology is in a continuous evolution, as well as the human society. In the

present context, in which the exchanges of information that include the rights of industrial

property on some processes and techniques or on the experience accumulated on the basis

of the use of certain procedures, these are more and more frequent. Together with it there

is an evolution in the methods and in the means of acquiring and using them, and the

possibility of unauthorised disclosure of these is also bigger.

Even if this type of knowledge, acknowledged as know-how, has, in principle, secret

character, the cases in which this is illegally disclosed are more and more frequent, taking

into consideration not only its value at an informational level, but also the value in what

concerns the innovation, the strategies of implementing a product on the market or the

principles of promotion. Moreover, within know-how there can frequently be found

formulas or ways of technical assistance regarding the use or the creation of a certain

technology, as well as the way in which this can be exploited and improved based on the

experiments and continuous research.

2. The Notion of Know-How

In some industrial departments, the creators and the innovators of technology cannot

benefit from the exclusive rights on their creations, without us referring to tangible assets

1 SSIF Romintrade S.A., cardis.magda@yahoo.com