Confidentiality agreements and protection of know-how
A production project may require drawings, specifications, costs and customer information to be exchanged before the main contract is signed. A confidentiality agreement, often called an NDA, can govern this stage. Its effectiveness depends on identifying the information, permitted uses and the practical management of access. The agreement forms part of the protection of a business’s information assets, which is also governed by Articles 98 and 99 of the Italian Industrial Property Code.
When know-how is a trade secret
Article 98 requires three cumulative conditions. The information must be secret in relation to experts and operators in the sector, have economic value because of its secrecy and be protected by reasonably appropriate measures. The assessment also concerns the particular combination of its elements. A production process or technical configuration may therefore require examination as a whole, as well as of its individual data.
Paragraph 1-bis, in force since 23 October 2026, expressly includes data, algorithms and mathematical methods for training artificial intelligence systems, provided the three conditions are met. Each project therefore requires identification of the elements that actually meet the requirements, who lawfully controls them and which measures preserve their confidentiality.
Defining information and permitted uses
An NDA establishes obligations between the parties and may cover confidential information beyond trade secrets alone. It is useful to specify the project, categories of material and how protected communications will be identified. Oral explanations can be followed by written confirmation within an agreed period. Where both businesses share information, the obligations should be coordinated in both directions.
The permitted purpose should be specific, such as evaluating a possible supply arrangement. The agreement should address testing, copying and access by advisers or subcontractors, with consistent obligations for authorised recipients. Any right to exploit a technology or the project’s results requires specific contractual provisions.
Coordinating signature and protective measures
Day-to-day management should make the agreed commitments workable. Individual access, restricted folders, authorisations limited to the staff involved and rules for forwarding files help control the circulation of information. Confidentiality markings help indicate its nature, while delivery records and document versions make it possible to establish what was shared.
Measures should be proportionate to the information’s value and context. In a complex collaboration, it is useful to identify who authorises new access and how staff changes, incidents or disclosures required by an authority are handled. These choices implement the agreement and help document the care taken to protect information assets.
Exclusions and lawful acquisition
Article 99 allows the lawful holder to prohibit unlawful acquisition, use and disclosure, while preserving independent acquisition. Article 3 of Directive (EU) 2016/943 treats studying and disassembling products that are publicly available or lawfully possessed as lawful under certain conditions, where there is no valid duty restricting that acquisition. Contractual provisions on technical analysis therefore require express consideration.
The NDA’s exclusions can address information already known to the recipient, information that becomes public without a breach and independently developed information, specifying how these circumstances are documented. Disclosures required or authorised by law and statutory exceptions, including those in Article 5 of the directive, remain applicable. A clause must be read alongside these limits.
A hypothetical example in industrial supply
Imagine a business sharing process settings with a potential supplier to obtain a quotation. Before transmission, the parties identify the files and agree that they may be used to prepare the offer. The supplier identifies authorised technicians and keeps the versions received in a restricted-access folder. The agreement governs any involvement of an external laboratory.
If negotiations end, the return of materials, deletion of copies and withdrawal of access follow the agreed terms, taking mandatory retention duties into account. If disputed use emerges, the sequence of transmissions, file contents and accepted obligations help establish the facts. Classification as a trade secret still requires the Article 98 conditions to be assessed in the particular case.
Duration of obligations and international relationships
The agreement should distinguish the period during which exchanges take place from the duration of the confidentiality obligation. For information expected to retain its value, a short term may leave later uses outside the contractual obligation. Statutory trade secret protection instead depends on the continued satisfaction of its conditions. Duration, termination and surviving duties therefore require provisions consistent with the project.
Cross-border relationships also require coordination of the applicable law, jurisdiction and language versions of the agreement. If collaboration continues, licences, development agreements and supply contracts should properly address information already exchanged and new results. This coordination supports confidentiality throughout the commercial relationship.
Sources and references
Informational article prepared with assistance from artificial intelligence tools. It does not replace assessment of the specific case. Legislation and guidance must be checked against the relevant date and facts.