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Article

Title: A Brief History of Trade Secret Law, Part 2

Author: Linek, Ernie Article Type: Product Analysis
Source: BioProcess International, v2 n10 p20(6) Publication Date: Nov 2004
  ISSN: 1542-6319
  Illustrations: Charts
URL of Publication: http://www.bioprocessintl.com

Acquiring a trade secret through parallel development or reverse engineering is not illegal in all cases. The correct focus of inquiry is not whether an alleged trade secret can be figured out by reverse engineering, but whether improper means are needed to get at it. The owner of a trade secret does not have an absolute monopoly on the information or data that compose the trade secret. Other companies and people have the right to discover what comprises a trade secret through their own research and work. This was the 1974 decision handed down by the Supreme Court. Reverse engineering can also be used to legally discover the parts of a trade secret. The EEA does not directly address when reverse engineering could be a valid defense. However, legislative history indicates that the significant issue is a focus on whether the accused has committed an act that is prohibited by the statute, rather than whether the action was reverse engineering. If access has been gained to a trade secret lawfully, and, if it can be replicated without a violation of copyright law, patent, or EEA law, then that form of reverse engineering should be fine, says the EEA. One of three reported EEA cases highlighted is one in which two people were accused of stealing trade secrets from Harvard Medical School's Department of Cell Biology. The basis of the suit is that they had legal and contractual obligations, but they took and conspired to make proprietary and very marketable scientific information belonging to Harvard with the intention of profiting through collaboration with a Japanese company to create and sell related and derivative products or to otherwise capitalize on the information.

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