Know-how as an institution for the protection of commercial information

Belozerova Elena Olegovna Student, Faculty of Law, Southern Federal University 344006, Russia, Rostovskaya oblast', g. Rostov-Na-Donu, ul. Bol'shaya Sadovaya, 105 belozerova.e.o@mail.ru

Introduction

The definition of the concept and the right nature of know-how represent a number of complex problems, ranging from the characteristics inherent in this object and ending with the need to attribute it to the results of intellectual activity. Various legal systems have developed their own approaches to resolving some issues, but many aspects have not been properly regulated. Due to the lack of a unified legal approach to understanding the institute of know-how, it is necessary not to limit ourselves to de lege lata reviews, but to try to identify criteria for a possible interpretation of the law through guidelines that need to be finalized.

In the presented work, the main signs of know-how and the difference between this institute and "trade secrets" and "confidential information" are revealed. The following are answers to practical questions regarding the know-how transfer agreement. Methods of specifying the subject of the contract, means of minimizing the risks of the impossibility of implementing know-how in their production and means of protecting information from transferring it to their competitors through employees are not disclosed in the legislation. New answers to these difficult questions are presented.

In order to fully reflect the problems of the know-how institute, approaches to regulating relations on the transfer of production secrets in other countries, namely, in the USA, Great Britain and Germany, are analyzed. Despite the fact that each legal order has its own peculiarities in the regulation of know-how, it is possible to identify some common features that allow solving the problem of the uncertainty of the subject matter in the contract on the alienation of know-how, and problems in distinguishing this institution with similar ones. 

To date, the institute of know-how allows improving the economic growth of the state through the sale by international companies of their production secrets. The owner of know-how thus does not risk that his secret will be revealed and competitiveness will fall, and the acquirer of know-how receives a proven and effective mechanism for achieving success.

The Russian Federation does not have extensive judicial practice on contracts for the alienation of know-how, as this is a fairly new institution in the Russian legal order. For the most effective resolution of these problems, it is necessary to analyze only the legislation of various countries, but also the scientific research of lawyers.

Problems of legal definition of know-how

For the first time, the term know-how appeared in the judicial practice of the USA, after which it spread to the territories of other countries ^{[1, pp.474-475]}. Know-how is usually defined as actual knowledge that cannot be accurately described separately. However, after this knowledge is formed in the accumulated form as a result of trial and error, it makes it possible to produce something that would not otherwise be known to others ^{[2, pp.280-286]}.

According to Russian legislation (Article 1225 of the Civil Code of the Russian Federation), know-how is an object of intellectual property. The following criteria can be distinguished for attributing any information to know-how: this is information of any nature, information about the results of intellectual activity, about ways of carrying out professional activities that have commercial value. At the same time, an important criterion is that the specified information is hidden from the free access of third parties.

The concept of know-how specified in Article 1465 of the Civil Code of the Russian Federation complies with international standards and approaches adopted in foreign countries. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), in the chapter on the protection of undisclosed information, establishes a number of criteria that the specified information must meet. These criteria do not differ from the criteria established by Russian legislation in Article 1465. However, these criteria are equally suitable for know-how and trade secrets, and TRIPS uses only the general concept of "closed information".

It is necessary to distinguish between the concept of know-how and trade secrets in order to highlight the distinctive features of the secret of production. Neither in Russian nor in foreign legislation there is no differentiation of these concepts, and somewhere they are completely mixed up.

With the adoption of the Federal Law "On Trade Secrets" in 2004, this institution was regulated both by the Civil Code of the Russian Federation (Article 139 of the Civil Code of the Russian Federation) and by a separate law. Since 2008, the regulation of trade secrets has left the sphere of civil law, it has been replaced by the institute of know-how, but already in the fourth part of the code, and not in general provisions. Some scientists believe that the separation into a separate law completely brings the institution of trade secrets into the sphere of labor law ^{[3, p. 9]} But this argument does not solve the problem of the correlation of these concepts.

Other scientists believe that the difference between these institutions lies in their terminological inconsistency. It is assumed that a trade secret is a regime, and a production secret is information, so these objects are different. ^{[4, p. 58]}. Despite the fact that, in fact, know-how can ensure that information is kept secret in other ways besides the introduction of trade secrets, this does not make a significant difference.

It is necessary to conduct a detailed comparison of know-how with trade secrets in Russian law according to the following criteria:

1. The object of protection. Both institutes provide legal protection to information of any nature (industrial, technical, economic, organizational and others) about the results of intellectual activity in the scientific and technical field and about the ways of carrying out professional activities. Before the advent of a special federal law, trade secrets were defined through the category of "information", without giving specific criteria for this information. Now the definition has been concretized, and the argument that the trade secret regime cannot be extended to technical solutions ^{[5, p. 59]} is incorrect. Thus, the analyzed institutions are the same in terms of the scope of legal protection.

2. Subjects. Both individuals and legal entities can possess a trade secret within the meaning of federal law. The Civil Code of the Russian Federation does not list the circle of persons who have the exclusive right to know-how, but generalizes them with the term "copyright holder". It is understood that the copyright holder of the know-how can also be both an individual and a legal entity, if the law does not prescribe restrictions.

3. Turnover. The Federal Law "On Trade Secrets" establishes the following purpose of the trade secret regime - to increase income, avoid unjustified expenses, maintain a position in the market of goods, works, services or receive other commercial benefits. The Civil Code of the Russian Federation does not form special goals for the provision of know-how protection. In view of this gap, some scientists believe that trade secrets are necessary to protect information within the company (that is, they are not intended for alienation), and know-how is aimed at sale ^{[5, p. 60]}. However, a trade secret can also be in circulation as a subject of sale, which is explicitly stated in Part 6 of Article 3 of the Federal Law "On Trade Secrets".

5. Means of ensuring secrecy. Know-how is protected by law only if confidential information is hidden from the access of third parties, including when using the trade secret regime. Thus, the trade secret regime is not mandatory for the provision of legal protection of know-how, while it is this regime that allows you to prove the adoption of measures for the safety of information. It is problematic to prove the actual measures to ensure the inaccessibility of information to third parties. However, judicial practice also confirms the possibility of the existence of know-how without the introduction of a trade secret regime (Resolution of the Seventeenth Arbitration Court of Appeal of 10.03.2020 N 17AP-19376/2019-CC in case N A71-23503/2018 // SPS "ConsultantPlus"). To protect trade secrets, it is necessary to take a number of measures to ensure the safety of information provided for by federal law.

This is the first significant difference between know-how and trade secrets. However, there is not much practical significance in this distinction, since the owners of know-how still use the trade secret regime to ensure greater protection.

6. Term of protection. According to Article 1467 of the Civil Code of the Russian Federation, the exclusive right to know-how is not limited by the term, but ceases from the moment of loss of confidentiality of information. The concept of loss is not disclosed. If one person, to whom this information should not be known, finds out about it, then the exclusive right is automatically terminated? Or should it be a large group of people? The Intellectual Property Rights Court, by disclosing the secret of the proceedings, understands the availability of relevant information to third parties who are not obliged to maintain their confidentiality (The Intellectual Property Rights Court Ruling of 25.05.2015 N C01-303/2015 in the case N A40-118756/2013 // SPS ConsultantPlus).  The loss may occur due to the actions of the copyright holder (for example, he himself stopped keeping the information secret) or due to lawful or unlawful actions of third parties ^{[6, p.105]}.

It seems that the exclusive right to know-how should be terminated not from the actual receipt by a third party of classified information, but only when that person declared that he had received the specified data and intended to use it in any way, or when the dissemination of this information began to cause economic damage. Thus, classified information will simply cease to have commercial value and, by definition, cannot be know-how.

However, the problem of the "fragility" of the know-how alienation agreement (disclosure of information entails the termination of rights from copyright holders and existing contracts are lost) ^{[7, p. 88]} is solved by determining the specific moment of dissemination of information that will terminate the exclusive right.

A trade secret can also be protected for an unlimited period, since the specified period is set by the owner of the information himself. Termination of protection as a trade secret is possible only in case of cancellation of the trade secret regime with respect to specific information. In the case of disclosure of part of the information, there is no automatic termination of the trade secret regime, but only entails the imposition of responsibility on the perpetrators.

7. Liability for violation. According to Article 14 of the Federal Law "On Trade Secrets", persons who violate the trade secret regime are subject to disciplinary, civil, administrative or criminal liability. With regard to know-how, the Civil Code of the Russian Federation provides for civil liability in the form of damages and other liability established in law or contract. The Supreme Court clarified that any person can be a violator of exclusive rights, referring to Article 14 of the Federal Law "On Trade Secrets". Does it follow from this that the responsibility for the violation of know-how is equivalent to the responsibility for the violation of trade secrets?

If the know-how ensures the secrecy of its information through the use of a trade secret regime, then violation of exclusive rights to know-how entails two responsibilities, both for violation of trade secrets and for know-how? From the explanations of the Supreme Court in PPVS No. 10, it seems that if the protection of the secrecy of know-how is carried out through the introduction of a trade secret regime, then all liability measures should be equivalent to liability measures in the Federal Law "On Trade Secrets". Thus, the know-how protected by the trade secret regime from the point of view of responsibility becomes one object - a trade secret and entails responsibility only for this one object. Therefore, by analogy, Article 183 of the Criminal Code of the Russian Federation and Article 13.14 of the Administrative Code of the Russian Federation will be applied for violation of the rights to know-how, despite the fact that this object is not named in the articles ^{[8, p. 34]}.

If the know-how ensures the secrecy of its information without introducing a trade secret regime, then the responsibility for violation of exclusive rights can only be civil and disciplinary. In addition to collecting damages, the owner of know-how can use the methods of protection characteristic of intellectual property (Article 1252 of the Civil Code of the Russian Federation): withdrawal from circulation, publication of information about the violation of rights, etc. (Resolution of the Intellectual Property Rights Court of 09.07.2020 N C01-645/2020 in case N A71-23503/2018 // SPS ConsultantPlus). Losses can be considered the value of contracts that have ceased to be valid due to the disclosure of information constituting know-how or objective losses expressed in a decrease in the number of sales due to the appearance of a similar product on the market.

Thus, the differences in the regulation of know-how and trade secrets lie in the sphere of responsibility, in the terms of information protection and in the features of this protection. To choose the most favorable conditions for the enterprise, it is necessary to take into account these features.

Attribution of know-how to intellectual property objects

In many legal systems, there are still disputes about the legal nature of know-how. In some countries, it is referred to as an object of intellectual property (for example, Russia), and some countries do not directly consider know-how to be an object of intellectual property (for example, Great Britain).

This problem arises due to the features of the know-how as an object of protection, which were indicated above. As a general rule, intellectual property rights are absolute and, as A. A. Pilenko pointed out, should have a sign of genericity ^{[9, p.130]}.

1. Absoluteness indicates that the protected object is opposed to all others, no one can encroach on it. The absoluteness of the rights to know-how is questioned, since the main feature of this object is to keep it secret and not to oppose others. If the owner of the know-how reveals his secret, then automatically the right to know-how will cease to exist. When creating know-how, a secret is opposed to others, and what exactly it consists of is not specified. It is because of this that objectively there may be several similar know-how, or one object will belong to several persons, since its content is not disclosed.

V. A. Dozortsev notes that the variety of rights to know-how does not replace their absoluteness, but complements it, combining and existing alongside it ^{[10, pp. 107-108]}. Thus, a kind of exclusive right is assigned to the owner of the secret of production, which is not absolute at the same time, it is a quasi-absolute right that can belong to several persons at the same time. Such an exclusive right is a purely civil legal category ^{[11, p. 256]}.

The question of the absoluteness or relativity of the right to a secret of production is considered not only within the framework of Russian law, but is also a problem for foreign legal systems, for example, the United States. Based on the legislative framework of the United States (Uniform Law on Production Secrets), it can be concluded that the secret of production is sometimes considered as a thing. This conclusion follows from the fact that the law provides for the possibility to use methods of protecting rights characteristic of the protection of things, allows the secret of production to be used as collateral, and also assumes that the secret of production can be held by several persons at once as co-owners (Uniform Trade Secrets Act : Staff brief. Wisconsin Legislative Council Staff, 1984.)

The judicial practice of the USA tried to determine the nature of the know-how and was also not uniform in this matter. Back in the last century, in the case du Pont de Nemours Powder Co. v. Masland, the judge concluded: "The word "property" applied to a trademark and a secret of production does not allow defining the expression of current secondary agreements on the use of a secret of production due to the fact that the right has some residual concepts, such as trust. Whatever the plaintiffs had valuable secrets, and the defendants would not have known about these facts, an agreement on their use was reached through the trust nature of the relationship. They can deny ownership, but confidentiality is not" ^{[12, p. 4]}. Later in another case, the court pointed out: "the secret of production, unlike patent or copyright, has no proprietary value, but the theft of such a secret should be considered as a civil tort" ^{[13, p. 335]}. Based on these legal positions, it can be concluded that production secrets in the United States belong to the category of property, but not in the classical sense of property. That is, the right to the secret of production will not be absolute and at the same time will not be relative, this is a special legal construction. ^{[14, p. 259]}.

2. Genericity of intellectual property means that the copyright holder has the right not only to a specific object, but also to all possible variations of this object.  Know-how departs from this feature, since it includes both objects protected by intellectual property rights, which the copyright holder himself chose, in relation to a specific decision, and non–protected objects - documentation, economic information and the experience of employees ^{[5, pp. 47-49]}. If a competitor company has achieved the desired result in a modified way, but similar to the original know-how, then it is not considered that this is a violation of exclusive rights.

But the Civil Code of the Russian Federation does not specify as personal non-property rights the right to inviolability of the object in the know-how. This is logical since there are separate copyright objects inside the know-how, which have this feature only if they are published, and objects that are not protected by intellectual property rights cannot have inviolability, since their creation and use are not limited by law.

Due to these features, the UK does not classify know-how as intellectual property objects, but extends legal protection only in relation to protected intellectual property objects ^{[15, p. 58]}. That is, other information included in the know-how is not protected under the rules of intellectual property protection. This slightly narrows the legal field for the implementation of their ideas, since the secret of production will not be any information, but only protected. But at the same time, in the UK, information that is not an object of intellectual property can be protected through a confidentiality or trade secret regime.

The conclusion that the secret of production should be considered as an object of intellectual property is fixed in paragraph 2 of Article 1, Part 1 of the TRIPS Agreement. By referring commercially useful classified information to the object of intellectual property, it becomes possible to extend more extensive protection of this information, as well as a number of legal guarantees for keeping information secret.

Foreign practice in defining the concepts of know-how and trade secrets

United States of America:

The USA is one of the few countries where a separate law on production secrets has been adopted – the Uniform US Manufacturing Secrets Act of 1979 (UTSA). In 2016, a new act "The Law on the Protection of Trade Secrets" (DEFEND TRADE SECRETS ACT OF 2016) was adopted, which in most of its provisions does not differ from the previous act, but expands its legal effect and specifies responsibility for violation of trade secrets. The conceptual apparatus is revealed only in the 1979 law, so we will analyze it.

1. Confidential information. Ideas, information and processes that cannot be patented, reconstructed or copyrighted can be protected by maintaining their confidentiality. Thus, one of the signs of confidential information is that it is any information that a business does not want to disclose so that its competitors or the general public know or have access to it, such as customer lists, sales statistics, financial data, legal documents, new product offers, marketing plans, and business contacts.  According to the interpretation of US regulations, trade secrets and know-how are subsets of confidential information ^{[16, p. 5]}

2. Trade secret. According to UTSA § 1.1, this term means information, including formulas, images, compilation, programs, device, methods, techniques or process that:

(i) have an independent economic value, actual or potential, due to the fact that it is not publicly known and cannot be easily established by appropriate means by others who can obtain economic value from its disclosure or use, and

(ii) are the subject of reasonable efforts in the circumstances to preserve its secrecy.

The protection of trade secrets is valid indefinitely or until the trade secret is published or otherwise becomes publicly known. In addition, no registration is required for a trade secret, but the owner must take reasonable steps to keep it secret.

Trade secrets are mixed with the concept of know-how. There is no such term in US law, but in theory it is sometimes singled out.

3. Know-how usually refers to the ability to:

• Make the right business decisions
• Manage people
• Motivate
• Explore
• Create a design
• Use and maintain machines, technologies and data.

The link between know-how and trade secrets is often misunderstood. Although know-how refers to factual knowledge that is not generally known to the public and that may be difficult for others to reproduce, this knowledge may not necessarily be secret. A trade secret, as the name implies, must be kept secret. Secondly, trade secrets usually include know-how.

In the USA, the main difference between know-how and trade secrets is that know-how should contain useful information that will improve the efficiency of the organization, and a trade secret is any valuable information ^{[17, pp. 30-38]}

Great Britain.

In the UK and Ireland there are no separate legislative acts that regulate the protectability of know-how. The use of the term "know-how" can be seen in Section386 of the Corporate Income and Taxes Act of 1970. This act defines know-how as any production information, technical techniques that directly contribute to the production of goods and materials, mining, chemical compounds, as well as during agricultural and forestry work, or in fisheries ^{[18, pp. 252-253]}.

However, realizing the need to protect some information of merchants, the courts recognized the possibility of protecting technical elements as a secret of production as objects of intellectual property ^{[19, p. 15]}

In the UK, there are two overlapping regimes that are aimed at protecting business information. Information may be protected under common law as confidential information. Alternatively, the information may fall under the definition of a trade secret in accordance with the Law on Trade Secrets (Regulations 2018). There is a significant overlap between these two regimes, which provides for a number of remedies for information owners in the event of illegal receipt, use or disclosure of information protected by them. At the same time, the protection of trade secret rights does not depend on the existence of a contract between the parties. If there was a disclosure of information that is a trade secret, then regardless of the grounds for obtaining this information, the court recognizes these actions as illegal ^{[20, p.178]}.

Germany.

In Germany, until 2019, there was no single act regulating know-how.  The norms on know-how were contained in the legislation on unfair competition, labor and criminal liability. At the same time, the very definition of know-how is not used in the terminology of laws, but is replaced by the synonymous "trade secret" ^{[21, p. 659]}.

In April 2019, Germany adopted the Trade secrets Protection Act ("GeschGehG"). The law defines for the first time what is meant by the term "trade secret". According to Section 2 No. 1 of the Law, a trade secret is information (i) that is not generally known or easily accessible (i.e. secret) to persons who usually process this type of information and, therefore, has economic value, neither in general nor in the exact location and composition of its components, and (ii) in respect of which the rightful owner applies appropriate secrecy measures in the circumstances, and (iii) in respect of which there is a legitimate interest in secrecy.

Holders of the rights to the secret of production can be both individuals and legal entities (Gesetz zum Schutz von Gesch?ftsgeheimnissen (GeschGehG): [website] URL:https://www.gesetze-im-internet.de/geschgehg). At the same time, you can only legally own this information.  Illegal methods of obtaining the secret of production are specified in the law, but are not subject to protection.

EU Directive 2016/43 of the European Parliament and of the Council of June 8, 2016 on the protection of undisclosed production secrets and trade secrets against their illegal acquisition, use and disclosure distinguishes between the concepts of "trade secret" and "production secret" (know how) ^{[5, c. 57–64]}. This act does not give specific concepts of trade secrets and know-how, however, it clarifies that know-how is part of a trade secret, and the protection of know-how through the introduction of a trade secret is currently not the most effective way to protect classified information (paragraph 3).

Problems in the practical application of know-how

However, there are a number of problems in the practical implementation of the secret of production, which do not depend on theoretical approaches to its understanding. When concluding contracts with know-how, you may encounter the following difficulties:

1. The problem is in determining the subject of the contract.

Since the peculiarity of the secret of production is the need to protect information from access by third parties, it would be wrong to disclose all the information in the contract. In such a situation, the second party will not sign the contract, since it will already have all the protected information. But the second party also needs to understand that when signing the contract, it will receive the information it expects.

One of the solutions to this problem is the inclusion of general information in the subject of the contract, the specification of which will be contained in the annex to the contract. In the contract itself, you can specify that from the moment the contract is signed, the annex to the contract passes to the buyer, which will contain all the necessary information.

It will be most effective to improve the legislator's approach to this issue and regulate the process of disclosure of information containing know-how in order to minimize disputes in this situation.

2. The problem is in the implementation of know-how in production.

Until all the necessary information is received, the acquirer will not be able to make sure that all the information that makes up the know-how will be effectively used at his enterprise. He will not be able to predict that technical documentation and production algorithms will be suitable for his equipment.

To solve this gap, the parties to the contract must indicate in the column "Assurances and guarantees" information that will ensure that the seller's know-how will be effectively implemented on the buyer's equipment (specify a specific type of machine tools, for example). And then, if after receiving information, for example, about the optimization of production, the desired result is not obtained, the acquirer of the know-how will have the right to apply to the court with a claim for damages.

3. The problem of regulating relations on non-disclosure of information with employees.

When concluding an employment contract at enterprises that use know-how, the contract immediately specifies the employee's obligation not to disclose confidential information. However, this circumstance is very difficult to control when the employee has already left work and signed a contract with a competitor.

The problem is that an employee cannot be prohibited from using his experience, since it is an integral part of his personality. It is also almost impossible to trace the use of the accumulated experience. In the USA, in order to prevent this leakage, the employment contract includes a condition of non-settlement after dismissal to competitors, thereby preventing the dissemination of confidential information.

In the Russian Federation, the protection of workers is based on a very strict system of protection of their rights due to the historical heritage from the Soviet period. An agreement on the impossibility of employment with competitors for a certain period (non-competition agreement) is considered by the courts as limiting the constitutional right to work provided for in Article 37 of the Constitution of the Russian Federation. At the same time, there is an extensive judicial practice that recognizes the legitimate payment of remuneration to an employee for discontent with competitors (the appeal ruling of the Moscow City Court of 14.10.2014 in case No. 33-34658 // SPS "ConsultantPlus"). However, this is rather an exception to the rule.

But it is not always the introduction of a trade secret regime with respect to know-how that allows the employee to demand non-disclosure of information. In order for information to become a trade secret, it is necessary to take measures to protect it, in accordance with the Federal Law "On Trade Secrets":

1. Determine which information is included in the trade secret (it is impossible to specify that all information is a trade secret, it is necessary to establish a specific list);

2. It is necessary to restrict access to this information to third parties;

3. Keep records of persons who have gained access to trade secrets;

4. When concluding employment contracts with persons who will be entrusted with a trade secret, it is necessary to include in the terms of the contract the relevant requirements for non-disclosure and protection of information;

5. Apply the "Commercial secret" stamp and the owner to whom it belongs to to the material carriers of the protected information.

In addition to these measures, it is necessary to take the following actions in relations with employees in order to protect trade secrets as much as possible:

1. Familiarize with the list of information that is a trade secret

2. To familiarize with the regime of protection of trade secrets;

3. Create conditions for the employee to comply with the trade secret regime;

4. Get the employee's consent to the terms of protection of trade secrets.

The Federal Law for the recognition of trade secret information indicates the need to take organizational measures for protection, which may be as follows:
1. Install an alarm system at the place where the material carriers of the trade secret are located;

2. Protect files with a special "Copy Protection" function

3. Keep a log of access to information constituting a trade secret;

4. Investigate the occurrence of leaks of trade secret information within the company.

These criteria are also not directly specified in the law, however, applying the longer experience of the United States in the protection of trade secrets, it can be concluded that these interim measures should be regarded by the courts as an intention not to disclose information to third parties (US District Court, Northern District of California, San Francisco Division on Case 3:16:-cv-3474.).

Thus, for the Russian law and order, the only effective way to keep information secret after the dismissal of an employee who worked with her is a specific description in the employment contract of non–disclosure obligations. However, it is impossible to restrict his right to free choice of work in the future. 

Conclusion

Know-how is an object of intellectual property. However, many of its features highlight the know-how of their familiar objects: quasi-absolute, the possibility of owning an exclusive right by several persons independently of each other).

Know-how and trade secrets are not synonymous concepts and differ in terms of validity, responsibility of persons who violated the secrecy of information. The most effective way to keep commercially valuable information secret is to create know–how, which is provided by the trade secret regime. It is in this ratio that it is possible to apply the methods of protection provided for in Article 1252 of the Civil Code of the Russian Federation for intellectual property objects, as well as to extend criminal and administrative liability to violators, which follows from the legislation on trade secrets.

The absence of practical recommendations in legislation and judicial acts on the execution of contracts for the alienation of know-how makes this institution unattractive for business and lawyers, since not everyone understands how to properly execute this contract. If we use the risk minimization mechanisms proposed in the article, then the possibility of not implementing information in production will be minimized. It is also possible to adopt at the level of the International Chamber of Commerce and Industry a standard form of an agreement on the alienation of know-how, due to its effectiveness for the development of countries by selling their secret information about doing business.

The importance of creating these conditions is due to the growth of technological discoveries in business, which increase the competitiveness of organizations. Under the conditions of sanctions, this decision is of particular importance, since in order to continue effective economic activity, entrepreneurs from Russia can use already verified information to make a profit by concluding an agreement on the alienation of know-how. The development of international acts and the specification of national acts in the field of production secrets will increase the attractiveness for the use of this institution among entrepreneurs.