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Introduction
In a patent specification for a new product, the description of the "preferred embodiment" should, in theory, give sufficient instruction for a worker in the particular technical field to make the product without having to make a new invention. However, it is not usual, indeed it is not desirable, for the description to present all the detail needed to make the new product. There will be many details omitted since these are not of direct concern to the inventive concept. It is these details that can form the basis for a type of intellectual property called "know-how".
Know-how is the information relating to those details in the making of a product or the carrying out of a process which are essential to a correct functioning of the apparatus or process, but which are not for one reason or another patentable features. Know-how comprises such things as component size tolerances, machining clearances, the best finish for a particular surface, how long a particular paint film needs to be cured, what type of surface finish, if any, is needed, what particular range of temperatures is needed for best results. Even with the simplest product there are 101 details that are needed in order to correctly manufacture the product.
When you grant someone a licence under a patent or design, you will often need to give the licensee this information in order to enable him to make the product - simply handing him a copy of the patent specification will usually not be enough. It is even possible to licence know-how by itself, even if no patent or design is involved. Since the information which makes up know-how has often taken a considerable time and/or considerable expertise to develop, the information itself becomes valuable.
Note, however, that the law does not give you any protection for know-how. The reason why it is worth something is that the information is known to you, but is not known to the other party. In other words, it is confidential information. In return for a fee - a once only fee or a royalty - you tell the other party the information which is confidential to you. Once the confidentiality is broken, the know-how ceases to have any value. Thus it is fundamental in any know-how agreement that the information comprising the know-how remains confidential.
Can you register know-how?
There is no registration for know-how; indeed, as mentioned above, the law does not provide any specific protection for it. The only reason it has value and can be sold or licensed is that it is confidential. Therefore, the term of the protection is indefinite or, more realistically, for as long as the information remains confidential.