Thank you for joining. In the previous video,
we talked about how you can protect your knowledge through IP rights.
In this video we'll explain the difference between IP rights, and know how,
and why confidentiality could be an important tool
in order to protect your knowledge and research results.
Typically, the best way to protect your knowledge,
and research results is to keep them as secret, and not tell anyone.
When it comes to collaboration however,
you will have to confide in another party.
How do you make sure they keep
your information secret and not use it for any other purpose?
This is where a written confidentiality agreement can be of use.
In such an agreement, the other party promises that your information will be kept secret,
and will only be used for the agreed purpose.
At the same time,
the other party may want you to promise the
same for the information that the other party discloses to you.
Such agreements are called Confidential Disclosure Agreements,
in short CDAs or Non-Disclosure Agreements,
in short, NDAs or just Confidentiality Agreements.
The same type of document is used by each of these terms.
Now, before considering a confidentiality agreement,
you should ask yourself two questions.
Is the party to whom you will disclose your information trustworthy?
That might not always be the case,
and having an agreement in place may not always help you then.
After all, a written agreement is only a piece of paper,
and particularly when you are on research,
suing the other party for breach of contract,
usually is not a popular or effective way of spending resources.
Second, does your partner have
a clear and healthy interest in honoring their obligations,
in receiving your information,
and in achieving the purpose for which it is disclosed?
If the answers to these questions are satisfactory,
you are ready to enter into a confidentiality agreement.
This means negotiating with the other party.
Usually the organization you work with has attempted agreements you can propose to use,
or the other party may want to use its own.
Either way this is a starting point and can be negotiated on.
If the other party is a business,
it typically has rather stringent terms while
university templates typically are less stringent.
Unfortunately, so far no template confidentiality agreement has been
developed that is internationally accepted as best practice.
Now, let's take a more detailed look at what
a confidentiality agreement is and should arrange for.
A confidentiality agreement defines what confidential information is,
because it needs to be clear what the object of the confidentiality obligations is.
And it defines what the purpose of the disclosure is.
For example, the purpose may be to discuss a possible research collaboration.
The confidential information may only be used for the purpose,
so in this case to determine,
whether the parties wish to enter into such research collaboration.
Also a confidentiality agreement imposes
duties of non-disclosure and non-use on the party receiving confidential information.
The receiving parties for instance,
are not allowed to share the confidential information with third parties.
And confidential information may often be shared between
more than one person within an organization,
but only in so far as disclosing
the confidential information with multiple people is essential for the purpose.
So disclosure is permitted only on a need to know basis.
A confidentiality agreement should also
describe what is not considered to fall under the confidentiality obligations.
For example, if you as a receiving party can prove that you already possessed
information that is described as confidential information before it was disclosed to you,
the confidentiality obligations will not apply.
And if you signed a confidentiality agreement,
and the day after the confidential information was disclosed to you,
you run into the same knowledge at a conference for everyone to hear it,
are you obliged by contract to keep this knowledge confidential?
No. The confidentiality agreement should make
an exception for knowledge that is in the public domain.
In general, a confidentiality agreement should
not allow a party to claim any rights to any of the information that was disclosed,
other than the right to use the confidential information for the purpose.
It should also not claim exclusivity for the purpose,
or prevent a party to compete.
So, you should be able to discuss
your confidential knowledge with multiple parties in the same week.
Finally, your confidentiality agreement should
not contain any representations and warranties on ownership of information,
and non-infringement of third party rights.
As regards to your research results here,
you do not want to promise that
your confidential information does not infringe third party rights,
because you simply may not know yet if it does.
A confidentiality agreement should not be used to
protect know-how which needs stronger protection,
and is usually protected by agreements
that more closely resemble patent license agreements,
usually referred to as a know-how license agreement.
Know-how is information that is not generally known or readily accessible.
It is also usually valuable information,
and know-how is kept secret,
and usually well protected.
Know-how is information that is not patented,
either because it cannot be patented,
or because its owner does not want it to be patented.
Unlike a patent, know-how is not an exclusive right,
has no time limit,
there's no obligation to publish,
and is not protected other than by secrecy,
nor can it be transferred because of secrecy.
For example, how to make Coca-Cola,
the formula is not patented, but kept secret.
So, other manufacturers cannot reproduce the product.
As it is not patented,
Coca-Cola doesn't have to make the production process public in a patent description.
And, if a secret is well kept,
it can remain valuable know-how forever.
If Coca-Cola would have decided to file a patent when the formula was first discovered,
the company would have lost exclusivity a long time ago.
Remember the life of a patent is no longer than 20 years.
Although universities naturally develop know-how and do license it out,
keeping knowledge secret over a longer periods of time
is counter-intuitive to the mission of most universities.
Usually knowledge will be made public either as a result of a patent being filed,
or through publication in a scientific journal.
In the next video,
associate professor and chemist at Leiden University Medical Center,
Jan Wouter Drijfhout will speak about his experience in
protecting knowledge and research results. Thanks for watching.
Gert-Jan van OmmenProfessor of Human Genetics
