Theory and practice of intellectual property
№ 5 / 2018

ISSN (Print) 2308-0361
ISSN (Online) 2519-2744

PDF (Ukrainian)

DOI: https://doi.org/10.33731/52018.160773

Published      2018-10-29

Features of the conclusion of the contract on the transfer of know-how

Alla Diduk
Ukraine

Abstract
The article is sanctified to the problem questions of concept of agreement on the transmission of now-how. Legalnature of agreement on the transmission of now-how remains properly not certain and investigational not enough. It is on ditioned by almost complete absence of legal binding overs in relation to the order of conclusion, use and dissolution of such agreements, by their varieties, specific ofmaintenance and some other terms. For this reason legalnature of agreement on the transmission of now-how remains properly not certain and investigational not enough. Also it is conditioned by the specific of such offtype object ofcivil law as now-how that is passed by agreement. It should be noted that an agreement on the transmission of now-how is a agreement in the system of civil legal agreements. It be possible to say, that he is theunmentioned civil legal agreement that has the specific andfeatures and differs from other agreements in a civil law. Coming from it, expediently, that parties of agreement on the transmission of now-how had the proper name, but notadopted it from other agreements. Agreements on the transmission of now-how in literature usually examined as of the same type with licence contracts. Thus the first are named the agreements of unlicensedlicense, other by a patent license, and if the question issimultaneously about the grant of right on the transmission of now-how, then such agreements are named the agreements of the mixedlicense. In with it is there a question, or it is possible to name an agreement on the transmission of now-how alicence contract? It is imagined, that no, taking into account substantial differences between a licence contract and agreement on the transmission of now-how. Doubtful also there is theuse in him of term «proprietor» scientific and technical knowledge and terms «licensor» and «licensee». The subjectof agreement can be not only scientific and technical but also other knowledge and not only knowledge. Payment of reward is obligatory not in all cases, also a grantof technical help however is obligatory. Organization products that’s licensed is not an only aim. Thus, the name of agreement on the transmission of now-how is not very successful, and more faithful not quite exact. However, such name of this agreement already with standsin international and national contractual practice, that is why, not to create a mess with terminology, in future it will beused a term «agreement on the transmission of now-how» exactly. An agreement on the transmission of now-how in spite ofvague similarity with other civil legal agreements (as, forexample, with a licence contract, and also aught and with theagreements of purchase-sale, contract, property найму, lease, about joint activity and other) must take the separateplace in the system of social compacts. As such generallines quite not enough for his qualification from the point of view of legal nature as none of them, nor as their variety. Accordingly, an agreement on the transmission now-how is fully an independent agreement in the system ofother civil legal agreements, different from them, that needsthe independent fixing and mechanism of the legaladjusting.

Keywords: now-how, agreement about the transmission of now-how, license, licence contract, licenziar, licensee, cesiya, cedent, cesionariy