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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