Is Reverse Engineering a Misappropriation of Trade Secrets?
Back in 2021, a Stanford University team of scientists made headlines as they managed to reverse engineer the Moderna Covid-19 vaccine from just drops in discarded vials. The team determined the sequence of the mRNA for the vaccine and later posted it on GitHub. The process of reverse engineering is defined as working backwards from a product in order to understand the ingredients and the steps necessary to create it. But is this process even allowed in the first place?
Trade secret law doesn’t guarantee exclusivity on an innovation like the patent does, it only gives you the right to oppose any misappropriation to your trade secret. Reverse engineering is considered a lawful practice and done by fair and honest means, quite different from theft, bribery or corporate espionage. However, if the reverse engineering process is combined with some unlawful procedure, such as misappropriating the product, the whole practice is considered as a misappropriation of the trade secret as specified in the Defend Trade Secrets Act.
The Moderna vaccine case made clear once again the importance of a good intellectual property strategy when dealing with innovation. It needs to be kept in mind that the easier a product can be disassembled or analyzed, the higher is the risk of the reverse engineering. One solution in these cases is to establish contractual agreements between the trade secret holder and the other parties that deal with the product. A reverse engineering prohibition clause will not only make the other side responsible in case of reverse engineering, but also the whole practice will be considered unlawful. It would further improve things if the third parties involved had the same contract as well.
What other solution is available for trade secret holders to prevent reverse engineering in your opinion?