Abstract
Many entrepreneurs associate the “theft” of know-how with material copying: a duplicated file, a cloned project, an identical design. In reality, protection may apply even in the absence of a “one-to-one” copy: a trade secret can be violated without materially reproducing a document, when what is taken outside the company is a body of technical and organisational knowledge – procedures, solutions, configurations, working methods – that makes a product designable, manufacturable, maintainable and marketable.
It is here that the perspective shifts: we are no longer dealing solely with civil remedies such as injunctions and damages, but – when the legal requirements are met – also with criminal liability, under the offence of disclosure and use of trade secrets set out in Article 623 of the Italian Criminal Code. This is the point clarified by the Italian Supreme Court (Criminal Division) in judgment no. 16975/2020, which explains what is meant by a “secret” in criminal-law terms and why protection may apply even when the final product is not “identical”, but the development process has been fuelled by information that should never have left the company.
Copying others’ work saves time
When companies talk about “software”, they often immediately think of copying source code.
The decision, however, operates on a more interesting level: software as the operational translation of know-how. In many industrial and tech contexts, the value does not lie in a single file, but in the choices embedded in that software: parameters, control logic, decision-making sequences, calibration methods, refinements developed through testing, trial and error.
This is where know-how becomes “executable”: it is no longer just knowledge in people’s heads, but a combination of solutions that makes a product efficiently replicable.
This is precisely what the Court describes when it refers to competitive advantage in terms of “time savings”. According to the reconstruction adopted, the defendants used software-related knowledge acquired during their relationship with the injured company, exploiting it unfairly to drastically reduce the time required to develop a highly competitive product, avoiding the typical errors of those starting a new development process and thus obtaining a significant economic advantage.
The issue, therefore, is not only “what was copied”, but what was skipped: research, experimentation, costs, validation processes. The judgment states this very clearly: exploiting the “combination” of data resulting from years of experience made it possible to benefit from a time advantage without bearing the associated costs; and in markets characterised by rapid obsolescence, this advantage is decisive in valuing know-how as a body of unpatented practical knowledge.
In other words, the relationship between know-how and software lies precisely here: software can be the means by which corporate know-how becomes replicable, and legal risk does not necessarily coincide with cloning source code. The real risk is the appropriation of a “pre-mapped path” that allows one to reach a similar result without going through the natural curve of errors and costs that the original company bore over many years.
Criminal liability for misappropriation of corporate secrets (Article 623 of the Italian Criminal Code)
The first question the Supreme Court forces us to ask is a simple one: what are we talking about, in criminal-law terms, when we say “secret”? Not necessarily a classified document, nor a quasi-patent.
Article 623 of the Criminal Code protects, more broadly, information of an industrial or professional nature that a company does not intend to make available externally: a body of assets that may consist of technical content, operational solutions, working methods, and design and organisational choices.
The Supreme Court expressly refers to this dimension, stating that a secret may consist of a “cognitive and organisational asset necessary for the construction, operation and maintenance of an industrial apparatus” (judgment no. 16975/2020).
What is protected is not so much (or not only) “the file”, but what that file expresses: skills, methods, operational sequences, details that are not immediately accessible to outsiders and that, if taken outside the company, can compress its competitive advantage.
Put practically, Article 623 looks at a secret as useful and confidential information that has value because it allows one to operate better than others and that is learned for reasons connected to employment or a professional relationship.
From this perspective, the Supreme Court offers an important interpretative key: protecting know-how does not mean protecting “a document” alone, but identifying and safeguarding the core of knowledge that allows a company to make a difference on the market.
An abnormal acceleration by a competitor as an indicator of misappropriation of secrets
Many believe that, in order to be legally protected, a secret must coincide with something “filed”, patentable or at least collected in a clearly identifiable document. The Supreme Court clarifies, however, that for the purposes of Article 623 protection may also cover a company’s body of knowledge, resulting from years of experience and research and capable of ensuring a competitive advantage (and thus an expectation of greater economic profit).
Protection therefore does not depend on patentability, but on the fact that the information consists of industrial or professional knowledge that remains confidential within the company and is learned for work-related reasons or by virtue of a professional relationship.
Moreover, a secret does not necessarily have to coincide with a single file or an official manual, because it may consist of a combination of elements – procedures, settings, parameters, recurring operational choices, organisational methods – which, taken individually, may even appear commonplace or “industry standard”, but which, in their overall organisation, constitute a competitive advantage and form a coherent whole.
From this perspective, the offence may also concern non-patentable know-how not formalised in a single medium, where confidential information is subsequently disclosed or improperly used. This applies even if the final product developed by the competitor is “different” and there is no one-to-one material copying, because criminal relevance does not depend on outward similarity between products, but on the dynamics through which the result is achieved.
If the development of the new product is made possible or significantly accelerated by the use of confidential information learned within the company (for example parameters, calibration logic, testing procedures, organisational choices), the offence may exist even without material overlap, shifting the focus from “copying” to the unfairness of the method. The typical signal, in fact, is abnormal acceleration, with design and fine-tuning timelines that are difficult to reconcile with an autonomous R&D path, especially where the developer had direct access to that information for work-related reasons.
Trade secrets: the difference between criminal and civil protection
The Supreme Court clarifies that it is incorrect to automatically “overlap” the notion of an industrial secret relevant in criminal law (Article 623 of the Criminal Code) with the concept of confidential business information governed, in civil law, by Article 98 of the Italian Industrial Property Code.
Even after the transposition of Directive (EU) 2016/943 and the 2018 reform, identical terminology does not imply identical rules: the legislature replaced the expression “industrial applications” in Article 623 with “trade secrets”, aligning the wording, but did not transform Article 98 of the Industrial Property Code into a binding definition of the criminal offence.
The technical point is this: the Court excludes that Article 98 of the Industrial Property Code can function as an integrating provision for Article 623 of the Criminal Code. If it did, the criminal-law notion of a secret would be automatically tied to the three requirements of Article 98 (secrecy, economic value because secret, and reasonable protective measures), with the effect of narrowing the scope of criminal protection. The Supreme Court considers this incompatible with the system, also because the Industrial Property Code itself, in Article 99, preserves the discipline of unfair competition, thereby acknowledging the existence of situations deserving protection even where the requirements of Article 98 are not fully met.
The practical consequence is this: the notion of “trade secret” relevant for the purposes of Article 623 of the Criminal Code may be broader than the civil-law notion under Article 98 of the Industrial Property Code. This does not mean that Article 98 is irrelevant: the Court states that where know-how meets the requirements of Article 98, criminal protection under Article 623 can certainly apply.
However, where those requirements are lacking, it does not necessarily follow that all criminal protection is excluded: it is necessary to verify, independently, the existence of a legally relevant interest in maintaining secrecy, without imposing an automatic coincidence between the two regimes.
© Canella Camaiora S.t.A. S.r.l. - All rights reserved.
Publication date: 22 January 2026
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Margherita Manca
Avvocato presso lo Studio Legale Canella Camaiora, iscritta all’Ordine degli Avvocati di Milano, si occupa di diritto industriale.