How Could Trade Secret Law Limit Reverse Engineering?
Like copyright infringement, misappropriation of trade secrets can be both a civil and criminal offense. Generally, a trade secret is information that (1) derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Misappropriation means a wrongful taking or publication of a trade secret. Reverse engineering generally doesn’t violate trade secret law because it is a fair and independent means of learning information, not a misappropriation. Once the information is discovered in a fair and honest way, it also can be reported without violating trade secret law. However, reverse engineering that violates an NDA or other contractual obligation not to reverse engineer or disclose6 may be misappropriation. Breaking a promise made in a negotiated NDA is more likely to resul
