In Kazakhstan know-how is a form of intellectual property. This term is defined by the Civil Code of Kazakhstan as “trade secret,” and it is given the legal protection afforded to trade secrets.
Technology and scientific information is a result of intellectual creative work; often it is patentable or forms an important part of a patentable creation.
Know-how may be defined as the information that:
- has existing or potential commercial value because it is not known to third parties;
- is not legally accessible;
- its owner takes measures to keep it confidential.
The right to protection of know-how is valid for as long as the above features exist, i.e. the term of protection for a trade secret has the potential to last forever. Unlike trade secrets, patented objects are protected for a limited number of years.
Any information can be classified as a trade secret by its owner. However, by operation of law certain information cannot constitute an official or a trade secret, and it is excluded from commerce. This includes companies’ charters, by-laws, information regarding the rights to property and transaction therewith, national statistics records, information on the adverse environmental impact of business activities; information on any aspect of the company’s business which are subject to the state control, and certain other information defined by law.
How know-how is different from a patent:
- In theory, protection of know-how can be perpetual;
- Know-how may include information in any form that remains in commerce;
- There is no need and no requirement for the state registration of know-how.
Know-how cannot be part of the description of a patent of invention, as the latter must be published and must disclose the invention in details sufficient for it to be implemented.
The most common ways how a company can acquire know-how are: (i) it is created by the company’s employees; and (ii) it is transferred to a company under an agreement with a third party. A number of legal, technical and organizational steps need to be taken in order to establish the existence of know-how and protect it.
Like other IP objects, know-how can be evaluated, contributed to the charter capital of a company, entered in the accounting books, and even depreciated.
There are good reasons for each company to develop and implement a set of protection measures well in advance, because belated protection and reinstatement of rights will require considerably greater costs and is unlikely to ensure complete cure of infringement.
The scope of our services includes:
- Legal support in relation to development of a set of measures designed for protection of undisclosed information, including know-how.
- Drafting of confidentiality agreements;
- Drafting of agreements concerning the assignment of undisclosed information, including know-how.
- Legal advice on the protection of undisclosed information, including know-how.