SLOVENIA Law and Practice Contributed by: Nataša Pipan Nahtigal, Veronika Novak and Katarina Čepon, Šelih & partnerji
nomic value and provides a competitive advantage. Such knowledge is often confidential and not publicly available. Know-how overlaps with the concept of trade secrets but is broader. A trade secret is a legally defined cat- egory that must meet specific requirements (secrecy, commercial value and reasonable protection meas- ures), whereas know-how may also include informa- tion that does not fulfil all these conditions. Confiden- tial information is an even wider concept, covering any information parties wish to keep private and protect. Legal Protection Know-how is not recognised as an independent property right. Its protection is therefore indirect and depends on the circumstances: • as a trade secret, if statutory conditions are met; • through contractual arrangements, such as non- disclosure agreements or non-compete clauses; • under rules on unfair competition; or • by a patent, if it meets patentability criteria. 6.2 Protectability Requirements and Scope Types of Protectable Know-How Know-how covers a broad range of technical, com- mercial and organisational information that provides a competitive advantage. In practice, this typically includes: • technical processes and manufacturing methods; • algorithms, software solutions and research results; • customer lists and supplier data; and • pricing strategies and business models. The common feature is that such information reflects practical knowledge and experience developed within a business. Requirements for Protection Know-how is not automatically protected as such under Slovenian law. It receives legal protection pri- marily when it qualifies as a trade secret. In this context, novelty is not required. Unlike patent protection, know-how does not need to be new; how-
ever, it must remain confidential in order to benefit from legal protection. 6.3 Ownership, Creation and Employee Know-How Ownership of Employee Know-How As a rule, intellectual creations initially belong to the employee as creator. However, where they are devel- oped in the course of employment, the employer acquires the right to use and control them for business purposes. This is reflected in specific regimes; eg, under ZASP, material copyright in employee-created works is automatically transferred to the employer for ten years (with no time limit for computer programs), while inventions may be taken over by the employer under statutory conditions. For know-how, there is no explicit statutory regime, but in practice it is consid- ered to fall within the employer’s sphere where it is created in the course of employment. Contractors, Consultants and Joint Development For contractors, consultants and joint development partners, there is no automatic rule on ownership. As a general principle, know-how remains with its creator unless agreed otherwise. In practice, this is addressed through contracts, which commonly include: • NDAs; • clauses on assignment of rights; and • provisions on joint ownership and permitted use. Duties of Employees Employees are subject to implicit and statutory duties of confidentiality. They must protect the employer’s trade secrets and may not use or disclose them for personal benefit or for the benefit of third parties. These obligations apply during employment and may, depending on the circumstances, continue after its termination. 6.4 Protection Through Contract and Confidentiality In practice, know-how is primarily protected through contractual mechanisms that impose confidentiality obligations and restrict its use. The most common tools include:
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