ECUADOR Law and Practice Contributed by: Arianna Zurita Farías, Annabel Muñoz, Javier Estupiñán and Juan José Flores Rabascall, VIVANCO & VIVANCO
6. Know-How 6.1 Definition and Legal Basis of Know-How In Ecuador, know-how is understood as non-patent- ed, confidential, undisclosed and identifiable industrial knowledge with economic value for the development and operation of a business. The Commerce Code expressly refers to manufacturing knowledge, service procedures, technical-business solutions and com- plementary information linked to patented technology that is not itself patentable. It differs from trade secrets in that Ecuadorian legislation does not regulate know- how as an autonomous IP right; rather, know-how is mainly recognised in the context of licensing and commercial exploitation, whereas undisclosed busi- ness information is specifically protected under the trade secret regime of Decision 486. Accordingly, know-how is protected primarily through contract, confidentiality obligations and commercial practice, with relevant statutory support found in the Commerce Code and, where the information remains secret and commercially valuable, in the unfair com- petition and trade secret provisions of Decision 486. 6.2 Protectability Requirements and Scope Protectable know-how in Ecuador typically includes manufacturing know-how, formulas, recipes, tools, technical processes, service procedures, technical- business solutions, supplier-selection methods, staff training methods, quality-control methods and com- plementary information that allows more effective exploitation of patented technology. The Commerce Code also recognises know-how covering inventions kept outside the patent system for business reasons. To receive protection, know-how must be non-pat- ented, confidential, undisclosed and identifiable, and must have significant patrimonial value for the devel- opment and exploitation of the business. The Code does not impose a formal novelty requirement in the patent-law sense, but excludes information that is public, obvious to a skilled person based on previ- ously available information or legally required to be disclosed. In practice, secrecy and economic value are therefore essential.
ment mechanisms, subject to specific safeguards to preserve confidentiality during the proceedings. 5.4 Duration and Loss of Protection Trade secret protection in Ecuador lasts for as long as the conditions of Article 260 of Decision 486 remain satisfied; namely, the information must remain secret, retain commercial value because of that secrecy and continue to be subject to reasonable measures to preserve confidentiality. There is therefore no fixed statutory term. If the information must be disclosed by law or court order, it is not treated as a trade secret for those pur- poses. By contrast, disclosure to a public authority in order to obtain licences, permits, authorisations or registrations does not, by itself, place the information in the public domain. Authorised disclosure to a third party also does not automatically extinguish protec- tion, provided confidentiality is preserved; Decision 486 expressly allows authorised use or transfer and imposes non-disclosure obligations on authorised Civil remedies are available through both judicial and administrative enforcement. These include injunction- style relief, immediate cessation of infringing acts, removal of infringing materials from commercial chan- nels, temporary closure of the infringer’s establish- ment, damages and measures to preserve or obtain evidence. Ecuadorian law also allows provisional measures before or during the action. As to criminal sanctions, the materials reviewed do not establish a specific criminal regime for trade secret theft; Decision 486 expressly requires criminal procedures only for trade mark counterfeiting. Confi- dentiality during litigation is specifically protected by Article 545 of COESCCI, which requires the authority to adopt all necessary measures to preserve secrecy, limiting access to the authority and appointed experts to what is strictly necessary and subjecting them to strict confidentiality obligations. recipients unless otherwise agreed. 5.5 Enforcement and Remedies
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