I really enjoy this video on reverse-engineering one of my childhood favorites – skittles. My view is that in most situations reverse engineering and other experimentation should be a permissible fair use despite the existence of patents.
I really enjoy this video on reverse-engineering one of my childhood favorites – skittles. My view is that in most situations reverse engineering and other experimentation should be a permissible fair use despite the existence of patents.
What are the major circuit cases on reverse-engineering as regards to patent?
I’m not sure how you would even phrase that search query. Reverse engineering doesn’t seem to me to relate to patents. You are either practicing the claims of the patent or not.
Yeah, and why is the concept of “fair use” mentioned in the same breath as patents (“reverse engineering and other experimentation should be a permissible fair use despite the existence of patents”)?
There is no “fair use” defense to patent infringement; it is to copyright infringement, but reverse engineering the recipe for Skittles doesn’t seem to be a copyright issue.
Thanks for the video, I found it fascinating. But at the risk of being curmudgeonly, I wouldn’t go so far as to saying the video depicts reverse engineering.
Reverse engineering, so it seems to me, is where you take apart someone’s product to see how it was manufactured. Mechanical devices lend themselves to that, as does software (ignoring for now any potential copyright issues with going inside the latter). Chemical formulations, however, often aren’t amenable to reverse engineering, because looking at end product, it’s not immediately apparent how the product was made.
I’m not sure skittles can be reversed engineered, but if they can, I’m not convinced that what the woman in the video did constitutes reverse engineering. True, she looked at and ate the product, and she even cut it in half to see how thick the coating was. But she didn’t do chemical analysis of the different parts of the candy, and even if she had, it’s not clear that that would have told her exactly how the candy was made.
Instead she made some educated guesses about the different components of the candy, and through trial and error made her own product that is similar in appearance, taste and texture to the product she was trying to mimic. That’s like Microsoft writing its own code sui generis to end up with a user interface that has the look and feel of a Macintosh.
“Chemical formulations, however, often aren’t amenable to reverse engineering, because looking at end product, it’s not immediately apparent how the product was made. ”
Actually, chemical formulations are very commonly reverse engineered, as are recipes. Especially in the area of petroleum products, lubricants and rubber formulations in particular, early patents were broad enough to make large parts of the field very difficult to patent. Competitors regularly analyze and re-synthesize each other’s products to reverse engineer them.
And what you describe of the reverse engineering of the skittles from the video is very like the reverse engineering of chemical products. Physical tests and measurements are performed (thickness, texture, and mouth feel rather than viscosity, density, and lubricity), chemical analysis is performed – yes, taste buds and scent receptors are incredibly sensitive chemical detectors – and experiments are carried out in an attempt to mimic the chemical and physical properties of the product.
At the Mars factory (the original one I think, or the one that Mr. Mars guy made for his mom out near the Hoover Dam) they show you how they make most of their products right up front. MM’s and several other kinds of chocolates are on display, not sure about taffy/skittles.
I’m not sure what claim I’d infringe by taking apart a Skittle or anything else. A method for reverse engineering a hard shell candy comprising: halving the candy to produce two halves; imaging a first half to determine a thickness of a candy coating…
I’m not making Skittles according to their claims, and I bought the bag so I ought to be able to use them.
Perhaps what you note is so blatantly obvious to Denis that it need not be said at all.
The obvious question you would ask then, is what is the point then of the post?
Most likely as a vehicle to include the phrase “permissible fair use despite the existence of patents” even though in the particular context (as you have noted) nothing about the reverse engineering would be impermissible “despite the existence of patents”.
IMHO IMHO
The previous presupposes a distinction between “reverse engineering” and experimental “forward engineering” or “re-engineering”.
See post 1, below, and note that this is NOT the first time that Prof. Crouch has “floated” an article seeking to introduce the “concept” of Fair Use into patent law.
For those of us that pay attention, this attempt is both ill-advised, and ignores a wealth of history as to WHY copyright law contains a Fair Use provision and why patent law does not.
For those of us that pay attention, this attempt ALSO chimes in with the efforts of the Efficient Infringer crowd on making patent infringement into some “lesser” offense, (and away from the more typical “strict liability” offense that aligns with trespass of real property).
These types of forays are NOT by accident.
“My view is that in most situations reverse engineering and other experimentation should be a permissible fair use despite the existence of patents.”
I’m not even sure how this applies. In trade secret law, fair use allows you to use reverse engineering to figure out the composition of a product, and then make your own identical product if you wish, or publish the recipe, or do whatever else you want. The trade secret is no longer a trade secret.
In patent law, the patent is required to disclose the composition of a product so clearly that anyone with skill in the art could duplicate the product. In exchange for such disclosure, the patent owner receives the right to prevent other people from making, using, importing, or selling identical products for a short period of time, after which it is free for anyone to make or sell.
Are you proposing that if you are able to go through all the work of reverse engineering a known product while ignoring the fact that someone has already published and clearly described exactly what you need to do to create the now-published but previously unknown and non-obvious product, that you should then be able to strip them of the benefits of their work to create the product in the first place?
“My view is that in most situations reverse engineering and other experimentation should be a permissible fair use despite the existence of patents.”
That begs the question: do you think that it currently is not?
After all, we do have an “experiments” exception to infringement.
(note that this does not excuse a follow-on invention – whether or not the experiments exception is called into play – from violating aspects of protection of the progenitor item)
Methinks this smells of a (somewhat lame) attempt to introduce “Fair Use” into patent law.
There is a reason why Fair Use is NOT in patent law, while it is in copyright law. To attempt – as here – to comingle the concepts begs the wondering whether the deeper differences are understood.
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