ECUADOR Law and Practice Contributed by: Arianna Zurita Farías, Annabel Muñoz, Javier Estupiñán and Juan José Flores Rabascall, VIVANCO & VIVANCO
6.3 Ownership, Creation and Employee Know-How Ecuadorian law does not establish a detailed stan- dalone ownership regime specifically for employee- created know-how. In practice, ownership is primar- ily determined by contract and the business context, although the Commerce Code recognises the knowl- edge used in the activity as part of the enterprise. For contractors, consultants and joint development part- ners, rights should likewise be allocated contractually; in joint ventures, the agreement must be in writing and should regulate control, direction and the parties’ obligations. Employees are, however, subject to implied duties of loyalty and confidentiality. The Commerce Code prohibits employees from engaging, without authori- sation, in competing dealings of the same kind as the business in which they serve, while Decision 486 requires any person with access to confidential busi- ness information through employment or business relations to refrain from using or disclosing it without justification and consent. 6.4 Protection Through Contract and Confidentiality In Ecuador, know-how is primarily protected through contractual confidentiality mechanisms. The most common tools are written know-how licence agree- ments, standalone non-disclosure agreements (NDAs), confidentiality and non-disclosure clauses, non-use and non-transfer provisions, and post-ter- mination obligations requiring the return of technical documentation and cessation of use. The Commerce Code expressly requires the licensee to keep know-how confidential, prohibits disclosure, sublicensing or assignment without the licensor’s authorisation, and requires the return of relevant doc- umentation at the end of the contract. Decision 486 also recognises confidentiality clauses in agreements involving technical knowledge, technical assistance or engineering services, and imposes non-disclosure duties on authorised recipients and persons who gain access through work or business relations.
6.5 Licensing and Assignment Know-how may be licensed independently in Ecua- dor as a distinct subject matter under the Commerce Code, which regulates licence agreements over non-patented, confidential, undisclosed and identifi- able industrial knowledge. The holder of undisclosed information may also authorise its use, enjoyment or exploitation by a third party, so in practice know-how can be commercially transferred separately from pat- ents, although it often overlaps with trade secret pro- tection where the information remains secret. As for formalities, the sources reviewed do not estab- lish a specific requirement of recordal, notarisation or registration for know-how licences comparable to the express rules applicable to patent assignments and patent licences under Decision 486. As a know-how licence is regulated as a contract, it must satisfy the general validity requirements applicable to acts and contracts under the Civil Code, namely legal capac- ity, valid consent, a lawful object and a lawful cause. Accordingly, the enforceability of a know-how licence in Ecuador depends less on registration formalities than on a clear and properly drafted contractual framework that defines the permitted scope of use, remuneration, confidentiality obligations, restrictions on sublicensing or onward transfer, and return or destruction of documentation upon termination. 6.6 Reverse Engineering Reverse engineering is not generally regulated in Ecuador as a standalone rule for know-how. However, COESCCI expressly permits reverse engineering in the specific context of software, where it allows reverse- engineering activities on a legitimately obtained copy solely to achieve operational compatibility between programmes or for research and educational pur- poses. Outside of that specific software rule, the legality of reverse engineering in relation to know-how will gener- ally depend on whether the information remains confi- dential and protected as undisclosed business infor- mation, and on any contractual restrictions agreed by the parties. Contractual clauses prohibiting reverse engineering should therefore be enforceable in prin- ciple, especially where they operate as confidentiality
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