Know-how protection and former employees

With judgment no. 16975 of 02/11/2020, the Court of Cassation clarified the boundaries of the protection granted to particular categories of business information.

The Case

The case examined by the Court concerned four former employees of a company active in the design and marketing of mechanical equipment which, after resigning, had produced a technologically sophisticated product and then sold it to a competing company.

The former employer complained about the embezzlement of know-how, claiming that the product in question was made using the knowledge acquired in his company during the development of a very similar product, made precisely with the collaboration of the defendants.

In this judgment, the Court confirmed the convictions against the defendant, focusing on the content of the protection accorded to know-how in the light of the current legal framework.


Information can, in fact, constitute a significant part of the company’s assets, especially when it represents an asset of strategic knowledge that allows the entrepreneur to remain on the market and maintain a commercial advantage over competitors.

In particular, the term know-how identifies that cognitive and organizational heritage necessary for the construction, operation, maintenance of an industrial apparatus“.

The Court accepts this definition, also specifying that this expression includes “the entire wealth of knowledge of a company, the result of experience and research accumulated over the years, and capable of providing the company with a competitive advantage, and therefore an expectation of greater economic profit“. Know-how is therefore recognized with a specific economic value, equal to the amount of the investments required for its acquisition and the competitive advantage it generates for the entrepreneur.

Since the same permanence of the company on the market may depend on this information, the system recognizes specific protection for know-how, which is declined differently depending on the type of information that is assumed to be abusively acquired and the consequent damage that may result.

First of all, Article 2105 of the Civil Code obliges the worker not to disclose information related to the organization and production methods of the company, or to use them in such a way as to be detrimental to it. This is an obligation generally laid down by the worker, which bonds him to behave loyally and faithfully towards his employer, refraining from any act that might harm him, even if only potentially.

Article 98 of the Industrial Property Code protects a specific category of information, i.e. “trade secrets“.

This rule applies to company information and technical and industrial experiences, including commercial ones, which are not known to other operators in the sector and which has an economic value precisely because they are kept secret through the application of appropriate security measures. If all these requirements are met, the information is considered “secret” and the holder has the right to prohibit its misuse, acquisition or disclosure to third parties.

In addition to the protection offered by civil law, know-how is also protected by criminal law. In particular, Article 623 of the Criminal Code punishes with imprisonment for up to two years the disclosure or use of “trade secrets” acquired abusively.

Despite the terminological identity, the notion of “trade secrets” accepted by the Criminal Code is broader than that described by art. 98 of the Industrial Property Code.

In fact, in the judgment under examination, the Court made it clear that the “secret” referred to in Art. 623 C.C. “includes that set of confidential knowledge and particular modus operandi able to guarantee the minimizing of design and realization errors and therefore the compression of production times“.

Criminal protection therefore extends to the entire cognitive and organizational heritage necessary for the construction, operation and maintenance of an industrial apparatus, including all information on industrial productions and commercial programs for which a legally appreciable interest in maintaining secrecy can be identified.

As a consequence the field of application of the criminal law is wider than the one outlined by the Industrial Property Code because it punishes even conducts relating to information that cannot be considered “secret”, pursuant to the aforementioned art. 98. It follows that the disclosure of a piece of information could supplement the offence provided for in Article 623 c.p. even if that information is not protected by the Industrial Property Code.


On the basis of these considerations, the Court considered correct the reasoning expressed by the Court of Appeal of Milan, recognizing the defendants guilty of the crime referred to in Art. 623 C.P.

In fact, the former collaborators had been able to create a technologically sophisticated and highly competitive product in just three months thanks to the know-how acquired while employed by the previous company.