Know-how and R & D

Know-how, confidential information and trade secrets

Know-how

‘Know-how’ is technical or practical knowledge resulting from research or experience and usually relates to the way something is done. Know-how as a type of information can have great commercial value, even though it is different from and often less well defined than the more traditional types of IP right. For more information, see Practice Note: Know-how—protection and licensing.

Confidential information

Under common law, it is settled that for information to be protected as confidential it must have the necessary ‘quality of confidence’ and be imparted in a ‘situation imposing an obligation of confidence’. The recipient of confidential information owes a duty of confidence and any unauthorised disclosure or use of the confidential information to the detriment of the ‘owner’ may give rise to a cause of action.

There can be significant overlap between confidential information and know-how. Know-how is not necessarily confidential, but most of the time if the know-how is valuable (eg only known within one company, within a select group of individuals in a company, or by a single person) then it is likely to be confidential.

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