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   Who can discover a trade secret?
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   Author  Topic: Who can discover a trade secret?  (Read 982 times)


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Who can discover a trade secret?
« on: Nov 30th, 2007, 9:44pm »
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As an engineer working for company, I designed a computer card which does a specific function in a system my employer builds.  Details of the card's operation and how to use it are considered a trade secret by the company, despite the fact that the card has a common function and equivalent cards are produced by many other companies.   Five years after leaving the company and free of all non-complete agreements, I want to write software which runs on the system and competes with software provided by my former employer.  The non-disclosure agreement I signed prohibits me from using the company’s trade secrets as long as they remain secret.  But I know how to discover the necessary information through reverse engineering techniques which do not rely on my knowledge of the card.  Any skilled engineer could do it.  If I can document the discovered information and how I obtained it, is it no longer secret?  What if I hire someone else to do it without passing them any information I have about the card?
IP Logged
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Re: Who can discover a trade secret?
« Reply #1 on: Dec 3rd, 2007, 12:24pm »
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That's an interesting question you raise.  I'll start with what I think is the easier one.  
If you hire someone to reverse engineer a product (DMCA issues aside), and that person does it without substantive input from you, I would imagine you'd be free and clear from trade secret issues with your former employer.
The more difficult question is, what if you did the reverse engineering yourself?  If you could demonstrate that your reverse engineering efforts did not rely on your knowledge of the trade secrets -- a difficult thing to prove, I would think -- then you should be ok on the trade secret issue as well.  My concern, of course, is that you wouldn't be able to demonstrate sufficiently that you didn't use your proprietary knowledge to reverse engineer the product.
Finally, if you could adequately prove that it is within the abilities of the ordinary (or perhaps, extraordinary) person in the relevant art to reverse engineer the product, the whole question may be mooted, as releasing the product to the public might effectively remove the trade secret status.  This last point might be affected by provisions of relevant licenses and/or sales agreements.
- Jeff
« Last Edit: Dec 3rd, 2007, 12:25pm by JSonnabend » IP Logged

Intellectual Property and Technology Law
Brooklyn, USA
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