Does trade secret protection cover reverse engineered products/services?

質問

Hi! If company A has valuable tech or information protected as a trade secret, could A sue company B if B reverse engineers the technology or publishes or uses the information, assuming that B never actually had access to the protected tech/information?

When a startup chooses to protect its IP as a trade secret, -- and I have heard that this can be a financially sensible alternative to patents/trademarks etc. -- does that not constitute rather weak protection, if any competitor can just use the same product as long as they can more or less figure out the underlying technology? In a lot of cases, it should not be that hard to catch up with first-movers. Should startups then even consider trade secret protection?

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回答: 2 public & 0 非公開

Steven weinrieb
弁理士

Trade secrets and copyrights are similar in that if independently generated, they are not protected. So, in your hypothetical case, if an independent party - not an employee, not a hacker, whatever, independently derives or generates the information, A cannot sue B for violation of its trade secrets because B independently derived or developed the information. As I said, this is somewhat similar to copyright protection - copyright protection prevents copying. So, let's say you take a photograph of an iconic event - as did Joe Rosenthal of the US Marines raising the flag on Mt. Suribachi in WW II on Iwo Jima - one of the most iconic photographs of the 20th Century - he had the copyright on that photo so if you copied the photo, you would violate his copyright protection. But let's also say that you were a photographer's assistant and you were there with Joe Rosenthal, and just for kicks, you took your own photograph of the incident. Your photograph would not violate his copyright because you did not copy his photograph - you independently generated your own photograph even though it was essentially the same photo of the same incident at the same time.

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