Know how agreement

WHAT IS KNOW-HOW?

With the industrial revolution, businesses expanded and diversified. This diversity has also caused complexities in the market. As a result of the confusion, it has become difficult for businesses to formulate their activities. The knowledge and experience of businesses remain in the monopoly of their owners. Later, as this information, which was considered a secret, became of economic value, know-how became popular and began to take shape.

Know-how refers to an easy way to benefit from a method or information. Know-how, which does not have an exact equivalent in Turkish, approximately corresponds to professional secrets. It is also possible to express it as technological accumulation in today's conditions.

Businesses transfer their production methods, experiences and technological structures to another business with a know-how contract. The other party of the contract can easily access this information, which requires effort and experience, for a certain fee. Thus, competition in the market increases.

KNOW-HOW FEATURES

In Article 3 of the Communiqué No. 2002/2 issued by the competition board, know-how is defined as "It means the non-patented, application-oriented, confidential, essential and determined information package obtained by the provider as a result of experience and trials." According to the Communiqué, know-how has features such as confidentiality, essentiality and being determined.

Privacy

Paragraph 1 of Article 3/f of the Communiqué defines the concept of confidentiality as "The concept of "confidential" means that know-how is not known to everyone or is not easily accessible, even as a whole or when its parts are fully brought together and combined."

The purpose of know-how is to provide easy income to those who receive know-how. Moreover, a business that wants to acquire know-how is thinking of making a profit. If it is considered that the know-how is not secret, it is obvious that it will not provide any profit to the buyer, on the contrary it will impose a financial burden. Therefore, know-how must be confidential.

Essentiality

Article 3/f 2 of the Communiqué defines the essential concept as know-how containing indispensable information for the buyer in terms of the use, sale or resale of the goods or services subject to the agreement.

The aim is for the know-how field to be able to compete in the market and reach a certain position thanks to know-how. More clearly, know-how should provide an advantage to the buyer.

Being Determined

The fact that the know-how is determined according to the Communiqué means that the know-how is defined in a sufficiently comprehensive and detailed manner to verify that it meets the conditions of being confidential and essential. Know-how includes certain information. It is not an absolute right that transfers all the rights of the business to the buyer.

ELEMENTS OF THE KNOW HOW AGREEMENT

The Turkish Code of Obligations regulates the general and special provisions regarding contracts. Some contracts are listed by name in the special provisions section. The fact that the law regulates some of the contracts by enumerating them does not mean that the contracts are limited. In order to establish a contract, it is necessary and sufficient that it is not contrary to the law and that the parties declare their mutual will. In accordance with the principle of freedom of contract, the parties can conclude the contract as they wish.

Know-how contract is not a type of contract regulated separately in the TBK. The contract is a sui generis contract. For this reason, the provisions of the law are applied to know-how contracts by analogy.

In order to establish a valid know-how contract, the party giving know-how must give the other party the right to disclose and use a certain know-how, the features of which we have listed above. In return, the buyer has an obligation to pay the price.

The know how contract should provide an advantage to the purchasing party. In order to provide this advantage, the contract must contain certain conditions. In order to achieve the goal aimed at the contract, know-how contract;

1-It should consist of technical and commercial information.

2- It should be confidential.

3- It must be transferable.

4- It should contain all kinds of information regarding the industrial field. The knowledge and experiences that constitute know-how must absolutely be related to the industrial field.

We stated that know-how is expressed as a trade secret. These secrets should concern an enterprise. Trade secrets that do not concern an enterprise do not constitute know-how.

As we explained above, know-how must be confidential. Information that is accessible to everyone cannot be subject to a know-how contract. Since the contract aims to gain advantage, it will be understood that non-confidential information does not serve this purpose.

Know-how is used in technical and commercial areas. Technical areas such as design, test results, static calculations, recipes, formulas and statistical calculations constitute the subject of know-how. In addition, know-how in the commercial field can also be created in cases such as customer cards, financial documents, advertising methods and personnel training. In short, know-how covers all knowledge and experience in the industrial field.

DIFFERENCE BETWEEN KNOW-HOW AND PATENT

Patent represents the permission to use a right. Patent rights are legally protected. However, there is no protection management for know-how.

Although a permanent debt relationship is established with a patent, know-how does not create a permanent debt relationship.

When the patent contract expires, the right to use also ends. However, it is not possible to take back the rights transferred with know-how. Know-how can be transferred to third parties.

If third parties obtain information that constitutes know-how, they can use this information. However, a patent prevents the right of use of third parties.