C. Reverse Engineering

Reverse engineering—the process by which examination of an item permits an observer to discern its workings, and to create a duplicate or superior product without access to plans or other information describing those workings—is uniformly accepted, even when the item at issue has been constructed with proprietary information or other trade secrets.⁶¹ The Restatement expressly provides that "[i]ndependent discovery and analysis of publicly available products or information are not improper means of acquisition,"⁶² and all state trade secret laws permit reverse engineering.⁶³ The Supreme Court has described reverse engineering as an "essential part of innovation" that "often leads to significant advances in technology," and has held that states may not bar reverse engineering of items that are not patented.⁶⁴ Judge Richard Posner has written that "it is perfectly lawful to 'steal' a firm's trade secret by reverse engineering."⁶⁵ And reverse engineering is "one of the most important ways in which trade secrets expire," and prohibiting it could lead to indefinite protection for the owners of trade secrets.⁶⁶As one commentator has put it:

[C]riminalizing reverse engineering would upset the basic bargain of intellectual property law. It would take material that was formerly considered public . . . into the domain of the private. ⁶⁷

As originally enacted, the EEA did not expressly permit reverse engineering, and punished, inter alia, one who, without authorization, "copies, duplicates, sketches, draws, [or] photographs" a trade secret.⁶⁸ These acts may be helpful, or even necessary, to an effort to reverse engineer a product or process. For example, in order to read and understand a computer program's logic, a programmer must decompile the object code to reveal an undocumented source code, a process that requires making copies of the program.⁶⁹ And the EEA's prohibition against "altering" a trade secret could be interpreted to prevent certain kinds of analysis, such as the use of chemical reactants to bond to secret chemicals or to precipitate out certain elements from the formula.⁷⁰

It does not appear that Congress intended, in enacting the EEA, to prohibit, or even discourage, reverse engineering. One of the sponsors of the Senate bill stated that:

The important thing is to focus on whether the accused has committed one of the prohibited acts of this statute rather than whether he or she has "reverse engineered." If someone has