Reverse Engineering and Commercial Secrets
Tanya F. Aplin · Current Legal Problems · 2013
Reverse engineering is an important means of promoting competition and encouraging innovation. However, its place in the law of confidence has been under-explored. While English courts have occasionally recognized the freedom to reverse engineer, there has been a lack of clarity about when persons will be permitted to reverse engineer articles that embody commercial secrets and on what basis—whether it is because the information contained within a marketed product is no longer confidential; whether there is an absence of any obligation of confidence or breach of such obligation; or whether an exception applies. The article identifies and articulates the existing principles that are pertinent to reverse engineering in the context of commercial secrets and argues that, in the future, courts should look to develop a reverse engineering exception as part of the law of confidence.