WPI 351.07 Reverse Engineering—Definition

Use this instruction with WPI 351.04 (Improper Means—Definition) when there is an issue as to whether the defendant obtained, or easily and inexpensively could have obtained, the information through reverse engineering.

This instruction is designed to explain to the jury what is meant by “reverse engineering.” In the American Bar Association's proposed instruction on “improper means,” reverse engineering is described as the “purchase of a product that contains trade secrets and then disassembling it to analyze those secrets.” Nelson & Fisher, Am. Bar Ass'n Section of Litigation, Model Jury Instructions: Business Torts Litigation § 8.4.1 (4th ed. 2005). In the ABA's proposed instruction on “competitive advantage,” reverse engineering is described as “taking apart and analyzing a product properly acquired to learn its secrets.” Nelson & Fisher, Am. Bar Ass'n Section of Litigation, Model Jury Instructions: Business Torts Litigation § 8.3.3 (4th ed. 2005).

As a general rule, reverse engineering is a proper means of acquiring trade secret information. See Boeing Co. v. Sierracin Corp., 108 Wn.2d 38, 53–54, 738 P.2d 665 (1987); Restatement (First) of Torts § 757 cmt. a (1939); Nelson & Fisher, Am. Bar Ass'n Section of Litigation, Model Jury Instructions: Business Torts Litigation § 8.4.1 (4th ed. 2005).

The jury may also consider evidence of whether the plaintiff's claimed trade secret could be reverse engineered for purposes of determining whether the plaintiff's information met the standards of secrecy required of a trade secret. See the Comment to WPI 351.04 (Improper Means—Definition); see also Nelson & Fisher, Am. Bar Ass'n Section of Litigation, Model Jury Instructions: Business Torts Litigation § 8.3.3, p. 405 (4th ed. 2005).