Legal protection of production secrets (know-how): modern trends in judicial practice

Abstract

The article provides an analysis of modern judicial practice in the field of legal protection of production secrets (know-how). The criteria for the protectability of the specified intellectual property object are investigated, as well as approaches to their establishment when considering relevant disputes. It is noted that with regard to the indication of the commercial value of production secrets, the prevailing conclusion in judicial practice is that the commercial value of know-how is presumed until the opposite is proven. The article expresses the opinion that there is no criterion of novelty in relation to production secrets. An attempt has also been made to solve the problem of the protectability of the production secret in the presence of the well-known nature of its individual parts. Taking into account judicial practice, the author has come to the conclusion that the general availability of individual elements of the secret of production (know-how) in itself does not indicate the secrecy of the secret of production as a whole. The article considers the modern approach of the legislator and judicial authorities to such a criterion of the security of a production secret as the need for the owner of commercially valuable information to take reasonable measures (legal, technical, organizational and others) to respect the confidentiality of information. The study analyzes court decisions regarding the need to appoint an expert examination to establish signs of know-how. The author came to the conclusion that there is no uniform approach in judicial practice in dealing with this issue. In addition, the article explores controversial issues related to the subjects of the exclusive right to a trade secret, as well as intellectual property rights to the specified result of intellectual activity. Taking into account the analysis of judicial practice, it is concluded that the copyright holder has only the exclusive right to know-how in the absence of copyright and other intellectual property rights (in particular, the right to remuneration for the creation of an official production secret).