Access to technology, or technology transfer, includes the access to and transfer of know-how. Conventionally, per the WTO TRIPS Agreement, know-how is considered undisclosed information protected by trade secret laws. Recipients of technology transfer seek to access such undisclosed know-how. For example, the 2020 Covid-19 IP waiver proposal made by India and South Africa at the WTO TRIPS Council asked for the waiver of relevant trade secret rights to ease access to technological know-how for combating the Covid-19 virus. In practice, how can a party successfully gain legal access to undisclosed know-how? Such know-how likely exists as a black box and is unreachable unless its owner is willing to share it. Such access is complicated when the information may exist outside the territory of the jurisdiction in which the seeker is located. This chapter explores possible answers to this question via venues in IP and competition laws and existing flexibilities in the international forum, such as the WTO TRIPS Agreement. The chapter suggests that we expand the know-how concept and adopt a packaged and collaborative approach to accessing undisclosed know-how.
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