The Transfer of Know-how - Reasons, Advantages, Inconveniences

Introduction

The international transfer of technology and know-how is one of the most important features of the global economy. The transfer of know-how plays an important role due to several factors as:

• In the research and development activity in the progress of all areas of social and economic life;

• preference for the transfer of know-how because of the hard, long and costly procedure for registration the invention and patent granting;

• impossibility of including all scientific and technical knowledge in the conventional terms of the patent, which requires the need to transfer them as independent objectives of commercial contract;

• desire to keep secret some technical knowledge, even temporarily, in order to exploit them with high efficiency;

• Great complexity characteristic for the patenting makes often impossible their exploitation without the delivery of certain additional elements.

The goal of this work is to demonstrate that the know-how represents the gab between the knowledges and techniques of the supplier of technology and the beneficiary. On one hand, the know-how is referring to the investments or manufacturing processes that do not meet the criteria for patentability. In this category it can be included the manufacturing processes which do not have an investment character for making the object for a patent and elements of technical progress which they include, being able to circulate only in the form of know-how. On the other hand,the know-how may represent the investments that meet the criteria of patentability and therefore they can be protected by a patent. In this case it has to be made a choise: either the investment is panteted, or is keeped as a business secret.

The trading of know-how is registering in the last period a high evolution because of its underlying motivations. It is about, firstly, a assertion of the research sector and mainly at the firm level and international concerns, willing to capitalize the research on third markets, assuring protection of know-how. For being commercialized with success, the object of know-how must possess some technical and economic priorities, compared with the currently existing on the market, the right evaluation being one of the main elements that have to be taken into consideration before commercializing the invention.

The target of the work is to show and analize the transfer of know-how, the benefits and obligation of the supplier and beneficiary of know-how and to analize different methods of determination of know-how.

The chapter I defins the main elements of know-how that can be summarized as follows:

- Availability of specialized knowledge, technical concepts, manufacturing processes and technologies, with novelty protected, keeping "trade secrets" as a condition strictly observed, so to the owner know-how and to its beneficiary;

- Economic effects in the form of goods resulted from the application of know-how, that must be superior to those obtained with already known technologies, in order to excite commercial interest.

The chapter II is based on a comparison of know-how elements, the analyses for trading with know-how in the contex of industrial property, innovations and United Nation’s contribution to trade and development from the transfer of technology point of view.

The case study will underline the know-how transfer in the Republic of Moldova and the main organization that protect the inventions in our country.

Chapter I : TRADE WITH KNOW-HOW

1.1. Know-how characteristic and protection

The term of know-how appeared in the United States since 1916, had acquired an important commercial role in the U.S. and UK at the end of 50s of XX century, and starting with the 60s - it began to be applied more on other continents. An invention, even if patentable, as long as it is not patented it can be considered a know-how component, being included in the manufacturing processes, in the use and application of techniques and industrial technologies. An important contribution to the definition of know-how, had a Paris International Chamber of Commerce, which in a scientific seminar held in 1957, defined the know-how, as "the set of concepts, knowledge and experience, operations and procedures necessary to manufacture a product”. Also the International Chamber of Commerce, at the seminar in March 1958, was specifying that the notion of know-how should correspond to the fundamental definition in art. 21 of the Law on restricting illegal competition, relating to actions a character of invention unprotected by law, the manufacturing processes, construction and other services that enrich the technique. In a paper of the Central Institute for Economic Research, is underlined that "it is enough that the holder of knowledge to do something better than an interested person to acquire this knowledge and to find us in front of a know-how". The United International Bureaux for the Protection of Intellectual Property from Geneva, in the law type, designed for developing countries with regard to inventions, defined the know-how as "manufacturing processes or knowledge aggregation and application of industrial technology”. The Guidance on drafting international contracts transfer of know-how in mechanical industry, developed by the United Nations Economic Commission for Europe, stated in art. 4 that know-how may be established for a product or category of products from a whole, or part of the technical knowledge needed to design, manufacture or operation and eventual sale of those products. The guide draft for the development of the transfer contract of know-how, developed by the same United Nations Economic Commission for Europe, mentions that the concept of know-how, carries all the formulas, technical definitions, procedures, production experience and other similar elements, which serve to manufacture a given product [ 2.5, pag. 44-45 ].

According the fiscal code of Romania, the know-how is any information regarding industrial experience, commercial or scientific which is necessary to manufacture a product or applying for an existing process, the discloser of which is not allowed without the authorization of the person who provided this information, to the extent that comes from experience, the know-how represents what a manufacturer can not know from simple examination of the product and knowledge of technical progress.