Regole fondamentali per proteggere le informazioni riservate
Ecco alcune regole fondamentali per proteggere le informazioni riservate. Le misure di salvaguardia devono essere rivolte sia all’“l’interno” – verso dipendenti o collaboratori – che all’“esterno” – verso i terzi in generale, come i fornitori.
Ed in questo contesto la fanno da padroni le procedure.
Le procedure servono ad identificare le informazioni, a catalogarle, a salvarle nel modo corretto, a segretarle, a disciplinarne l’accesso e soprattutto ad evitarne l’abuso e la “fuga”, oltre che evidentemente a dimostrarne la paternità.
Ma non solo.
Un’adeguata “filiera dell’informazione” consente di poter prendere coscienza di avere un patrimonio da tutelare e di conseguenza anche valorizzare anche e soprattutto dal punto di vista economico.
Il primo problema è infatti la presa di coscienza di avere delle informazioni che hanno un valore, vi è poi la loro individuazione e poi la loro tutela.
E’ evidente che mancando le prime due, la terza non ci potrà mai essere.
Non bisogna infatti dimenticare che il know how, coinvolge tutti gli aspetti salienti di una società: dagli gli aspetti organizzativi, ai processi fino ai prodotti ed alla loro commercializzazione.
Dal processo produttivo di un oggetto alla sua commercializzazione, infatti, è lunga la serie delle informazioni non brevettabili, sia per scelta o impossibilità.
Eppure queste informazioni, che possono essere tecniche o aziendali, per chi le detiene, lo si ribadisce, rappresentano un grande valore economico e per i concorrenti un indubbio vantaggio, se solo le potessero conoscere.
Ed ogni impresa possiede dei segreti generati durante la propria attività. La maggior parte delle imprese però, si rende conto della loro importanza soltanto quando il segreto non è più tale.
Senza contare che un minimo di “filiera dell’informazione” consente anche di avere il polso della propria situazione e mette anche in condizione di poter dimostrare che quell’informazione, quel risultato sia proprio e non del concorrente che magari lo ha acquisito tramite (esempio classico) l’assunzione di un proprio ex dipendente.
E’ quindi cruciale fissare dei paletti: stabilire un regolamento aziendale interno contenente istruzioni operative per mantenere la segretezza delle informazioni; stabilire strumenti idonei che consentano una limitata e censita condivisione interna delle suddette istruzioni operative; utilizzare protocolli di segretazione; fare formazione dei dipendenti o collaboratori ecc. sono solo alcune delle misure minime di cui bisogna dotarsi affinchè il know how si possa dire sotto il legittimo controllo di chi ne è titolare.
Contratti puntuali (siano essi lettere di intenti, accordi di segretezza o di non divulgazione) o esplicite clausole contenute ad esempio in contratti di collaborazione, subfornitura o appalto sono poi il giusto corollario per evitare brutte sorprese.
E’ sempre importante che venga definito “di chi è che cosa”, onde evitare di incorrere nella spiacevole esperienza del Signor Rossi (leggi).
Proprio attraverso questi contratti è possibile ottenere dalla controparte l’impegno alla non divulgazione o utilizzo di quanto da questa appreso in occasione delle trattative che precedono la conclusione di un contratto.
Tale tipo di impegno è utile, dunque, sia nel caso in cui ci si debba rivolgere ad un soggetto terzo per produrre un certo bene (si pensi al caso tipico di un contratto di subfornitura: il fornitore non può formulare la propria offerta ed il bene od una parte di esso non potrà essere prodotto senza conoscere dati che normalmente il potenziale acquirente non mette a disposizione di terzi) e sia nel caso in cui si intenda proporre ad altri un prodotto nuovo, ancora non brevettato o non brevettabile e che si voglia garantirsi che la propria controparte non se ne appropri in maniera illecita. E’ bene precisare che in questa fase le parti non sono ancora legate da alcun contratto, e le sole obbligazioni che potrebbero richiedersi sono quelle generali di correttezza e buona fede nelle trattative, sempre che si giunga ad un contratto definitivo.
Nel caso in cui non si giungesse alla conclusione di un contratto, il titolare delle informazioni non solo non potrebbe azionare alcuna leva in sua difesa ma anzi si troverebbe nella spiacevole condizione di non avere nessun supporto probatorio che attesti tanto la titolarità delle informazioni quanto la loro rivelazione, con la conseguenza che il terzo potrà utilizzare liberamente i dati acquisiti nel corso delle trattative.
È evidente allora la necessità di tutelarsi adeguatamente, dotandosi di un impegno autonomo, non legato alla conclusione del contratto finale e che contenga un esplicito riferimento alla quantità e qualità dei dati rivelati.
E ciò è ancor più vero se si pensa ai contratti internazionali: senza un’esplicita previsione, ogni ordinamento coinvolto potrebbe infatti portare a conclusioni differenti quanto ad obblighi delle parti nel corso delle trattative, con il risultato di non poter essere sufficientemente tutelati.
Alessandra Fiumara
Avvocato in Milano
17 Febbraio 2020- Tutti i diritti riservati
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