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Know-how is the core asset of an enterprise and the foundation to maintain its competitiveness in the market, so the protection and management of know-how is the most important part of the daily management of an enterprise. Even so, know-how disputes often occur after technicians' departure, the main reason behind is that the technology can bring great economic value, making technicians always try to breach the obligations they owned to their ex-employers, and even to infringe others' know-how illegally.
Therefore, this article will mainly introduce methods of "remedies after incidents", i.e., the follow-up investigation on the application of the know-how known to departing technicians.
I. preparation before investigation
Before the investigation, the right holder shall clearly know the keys of know-how, i.e., the real valuable technical information, which is usually attached to the specific carrier, e.g., algorithms as the object of know-how are attached to the code file, technical information in manufacturing field is generally attached to the design diagrams, process diagrams and other related documents. However, according to the Anti-Unfair Competition Law of the People's Republic of China, the right holder is required to summarize and refine the information attached to the carrier in order to identify the keys of know-how. The company, as the right holder, shall have professional knowledge to clarify keys of know-how.
II. common investigation methods:
1. former employee's career path after leaving the company
a. stipulation in labor contract and employee handbook
When establishing labor relationships with employees or designing employee handbooks, enterprises should pay attention to non-competition obligations and confidentiality obligations; the maximum duration of non-competition obligations can be up to two years after the departure of the employee provided that the enterprise must provide certain compensation to the employee. The confidentiality obligation term can be agreed for a longer period of time, such as five years or an unlimited period. The company should emphasize the non- competition and confidentiality obligations when conducting departure hand-over.
b. research through social media and professional job haunting platforms
Research the social media platforms as well as job haunting platforms. On these platforms, departing employees may update the status of their job haunting and information about their new employer.
2. focus on company competitors' technology and competing products
a. determine the scope of competitors
According to the industry and market in which the enterprise is in as well as the target and position of the product, identify other direct or indirect competitive enterprises as the focus of attention.
b. collect competitors' technology and product information
According to the business scope of competitors, focus on collecting and analyzing their technological updates and the technology used in new products. Specific collection methods include:
- Public resources (e.g., official websites, annual reports, news report, social media, etc.);
- Private resources;
- Direct observation (e.g., visiting competitors' factories, stores, exhibitions, etc.);
- Indirect observation (e.g., buying competitors' products or services, testing their quality and services, ), etc.
3. patent search
Some departing employees or their new employer will apply for patents for know-how of the previous employer with- out authorization. According to the provisions of the Patent Law of the People's Republic of China, such cases constitute service inventions, and the ownership of the patent rights belongs to the original employer. At this time, you can research and analyze the patents of the relevant technical fields to investigate whether the know-how has been applied for patents. In one of the cases we handled, when we searched for patents using the name of the departing employee as the keyword, a large number of patents appeared due to duplication of name. We narrowed down the search scope by analyzing the client's technology and identifying the specific field, thus obtaining the employment status of the departing technician and the patent application status.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
