Remember: Reverse engineering is not misappropriation

On Behalf of | Mar 31, 2021 | intellectual property & trade secrets

As a business owner, you take great pains to protect your trade secrets. After all, they are essential to your endeavors and competitive success.

There are many strategies you can utilize to secure trade secrets and prevent the risk of theft or misappropriation. However, even after making a reasonable effort to keep these secrets, there are still ways that competitors could put your trade secrets at risk without violating the law. In particular, reverse engineering is one concern of which business owners must be aware.

The law allows reverse engineering

Essentially, reverse engineering is the process of someone – usually a competitor – obtaining knowledge of a trade secret from studying your product, process or technology. Then they recreate it for their own purpose and use.

Under California law, reverse engineering is not considered an improper means of obtaining information or a trade secret.

If a competitor obtained your trade secret through improper means and reverse engineered the product, then you could take legal action and claim misappropriation. But reverse engineering in and of itself is not against the law.

How can business owners prevent reverse engineering?

Reverse engineering may not be illegal, but many business owners share the same concern: is there a way to prevent it?

The answer to that question is not exactly straightforward.

Precedent states that business owners cannot expand the definition of improper means in agreements or contracts to include reverse engineering. However, business owners can still improve their strategies of trade secret protection proactively in an effort to prevent this. It bears repeating that business owners should:

  • Control who can access trade secrets
  • Establish security measures to protect trade secrets
  • Ensure employees understand confidentiality terms

It is often a good idea to consult an experienced attorney as well to determine the effective strategies that will work best for your business. Reverse engineering is an issue that business owners must prepare for, but the proper preparation can reduce the risk it poses.