Is it better to have patents or protect your know-how?

A commonly questioned topic when it comes to protecting technological research and development (R&D) achievements is whether to use patent protection or know-how protection.

Comparing the similarities and differences, or benefits and drawbacks, of these two protections, such as protection methods, protection time, and remedial procedures, is the most straightforward solution to this question. From a different perspective, this article seeks to explain the understanding and handling of this subject.

How can a company built a route for recognizing all technological R&D successes from the perspective of technical personnel?

Although this question does not appear to be directly linked to the subject of this article, it is in practice. When a company employs technical experts for R&D, the goal is to obtain economic R&D results, not to develop a large number of patents. However, it is dependent on particular handles in the specific ranking evaluation and performance review. Patents are chosen as a significant parameter at this time, such as how many patents a certain R&D department or R&D individual applies for this year, and how many of those patents are innovation patents.

There would be hidden distortions in R&D and patent affairs if patents are utilized as the foundation for evaluation and compensation. For example, in patent mining, if the patent department or external patent agent suggests that the technology is best protected through know-how protection or does not recommend patent application, it will lead to a confrontation between R&D and the patent department or external patent agent: R&D will believe that if this proposal is adopted, it will directly deny R&D’s performance, resulting in disharmony between R&D and the patent department or external patent agent.

To avoid this occurrence, businesses must establish mechanisms for evaluating and rewarding all technical R&D successes. Evaluation on know-how can be undertaken for R&D achievements for which patent protection is not appropriate. Aside from evaluating numerous aspects of know-how (secrecy, practicability, value, and confidentiality), the ability to execute and the commercial value directly tied to the business can also be examined. If the know-how evaluation is positive, the same incentive system as for patents can be applied. The reward for the first level trade secret, for example, is the same as for the invention, and the second level trade secret is the same as for the utility model.

The best answers to the parameters considered in the selection of protection solutions are R&D workers. The key to deciding on a protection strategy is whether others will be able to identify and collect evidence if this technology is put on the market. As a result, a major issue has arisen, namely the technology’s external detection and evidence collecting.

The first stage is to detect, and the best respondents to do so are people who work in R&D. One technique is to approach an enterprise’s R&D engineer, ideally the technology’s inventor: Can you tell whether technology has been used to a competitor product if you’re given one? If the R&D team says no, we can assume that know-how protection, rather than patent protection, is the best option for the technology. If they respond yes, I can question, “On what grounds do you believe that?” Can you confirm that, based on the contents, competitor goods have embraced this technology? Is there a different option? We can basically determine if the technology can be discovered after application by asking a series of questions.

The next stage is to gather proof, which necessitates the collaboration of attorneys and R&D employees. First and foremost, let us question the R&D team: Can you prove and demonstrate what you just depended on? Of course, by utilizing any and all tools and equipment, as well as conducting tests. The response should be considered on a case-by-case basis, taking into account evidence regulations as well as the actual functioning of evidence preservation.

When using the above two steps, we should also consider the level, position, and personal character of the individual R&D professionals, as well as the questioning occasion, when drafting the questions to ask.

Other criteria, such as particular industrial sectors and industry procedures, must be examined in addition to the previous two processes in the complete judgment. You can, for example, look to see whether other companies in the industry have filed for patents on comparable technology. If other businesses apply for similar technology, this business should consider doing so as well. Otherwise, the company would frequently be a passive player in the risk game of losing patent protection and revealing proprietary information.