Alert! Protect your software against reverse engineering

Protecting proprietary software is critically important for many technology startups. Proprietary software can potentially be protected as a trade secret or by copyright or patent law – there are pros and cons to each approach. For example, some companies prefer going the trade secret route because, unlike with copyrights and patents, it requires no filings or disclosures; generally, all that is required is for the company to take reasonable measures to keep the trade secret confidential.

A company may lose its competitive advantage if a competitor “reverse engineers” its proprietary software. Reverse engineering software is the process of analyzing, disassembling, or experimenting with the software to discover its structure, design, or source code. Successful reverse engineering may enable a competitor to create a substantially similar or duplicate product. It may surprise you that reverse engineering software — even when it is copyrighted or protected as a trade secret — is generally lawful under federal and state law, unless theft, fraud, bribery, espionage, or other improper means are involved.

Fortunately, there are steps a business can take to minimize the risk of reverse engineering, such as contractually prohibiting business partners, licensees, and others with access to the proprietary software from reverse engineering it – with a breach of this obligation resulting in liability for breach of contract and trade secret appropriation.

Contact goodcounsel if you have concerns that your proprietary software is not adequately protected.

Jared Montney, an intern and 4th-year student at the University of Chicago, provided substantial assistance researching, drafting, and editing this blog post.

Categorised as: Lawyering