Intellectual Property and Open Source

Chapter 13. Reverse Engineering

One of the themes of this book is the growing strength of intellectual property protections like fortresses on the intellectual landscape. Like medieval castles, many different types of protection can be placed around a particular piece of intellectual turf. There are patent walls, copyright towers, and trade secret battlements that can only be accessed through licensing gates.

When medieval armies attacked, they had two ways to overcome castle defenses: by siege and by assault. During a siege, attackers would try to wait out the defenders of the castle, letting time do the work of removing the castle defenses. An assault, on the other hand, would attack the castle protections head-on to defeat them.

Both of these tactics are applicable to modern intellectual property defenses. Some sorts of protection, notably patent protection, can just be waited out. For example, the entire generic drugs industry exists because the patent protections around certain drugs have expired.

Reverse engineering, on the other hand, is more like a direct assault; the intellectual property protections are carefully surmounted or avoided to capture the prize within. Like medieval assaults, reverse engineering is risky, expensive, and complicated, but when it works, it provides a way inside the intellectual property fortress.

Storming the Castle

Reverse engineering is one of the most celebrated traditions of our legal system. It isn’t often that the dry world of intellectual property ...