反向工程的合法性及实施条件
胡开忠反向工程的合法性及实施条件
Legitimacy and Implementing Conditions of Reverse一Engineering
期刊名称：《法学研究》
期刊年份：
作者：胡开忠
单位：中南财经政法大学
中文关键词：反向工程;合法性;实施条件
英文关键词：reverse engineering;legitimacy;implementing condition
中文摘要：
反向工程在传统产业及信息产业中的存在具有一定的合理性，它可以限制发明人的技术垄断，节约研发的成本，促进技术进步并保护消费者的利益。反向工程问题不仅涉及发明人个人的利益，而且关系实施人及社会公众的利益，在确定反向工程的实施条件时，应当注意平衡上述利益关系，并根据各产业的特点完善这一制度，以促进科技和经济的发展。
英文摘要：
Reverse-engineering can be defined as the acts of acquiring technical information of others’ known products by detaching, measuring and testing their products. The existence of reverse-engineering is reasonable in some certain circumstances. The reverse-engineering is a kind of legal disposal of products owned by the applicators. With the research works done by the applicators, it is a sort of fair use of current technologies. It can not only prevent innovators from monopolizing technologies and promote technological progress, but also save research investment and protect consumers’ benefits.In traditional industries, reverse-engineering can be implemented legitimately when the applicators acquire the products for reverse-engineering through legal ways, have application conditions, undertake no obligation to veil others’ trade secrets, and find out others’ trade secrets through reverse-engineering. The cost of reverse-engineering on IC designs is very low. In order not to harm the prior designers’ benefits excessively, such reverse-engineering should not only meet the ordinary requirements in traditional industries, but also have new designs with originality stemmed from it.The reverse-engineering on software should satisfy the following requirements. Firstly, applicators should gain the software for reverse-engineering through legal ways and undertake no obligation of maintaining confidentiality. Secondly, they cannot gain necessary information about software through any way except reverse-engineering. Thirdly, the reverse-engineering should be based on due purposes. Applicators should limit their access only to necessary portions of programs for their purposes and conduct actual research works. Finally, they should not spread the information gained through reverse-engineering to others and cannot produce or sell infringing softwares.There are few provisions relevant to reverse-engineering in Chinese legislation, which is far from the needs of judicial practices. Our legislation on reverse-engineering should be improved and perfected by perfecting its definition, explicitly providing its implementing conditions on traditional industries, IC designs and software respectively according to their different characteristics, and denying the validity of “terms of prohibiting reverse-engineering”.
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