Attack of the Clones: Reverse Engineering, R & D and the Law

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EXECUTIVE SUMMARY

Reverse Engineering has been identified as an R & D methodology for assisting market followers in rapidly overcoming the competitive barriers erected by first mover firms or market innovators. This paper examines the manner in which reverse engineering methodologies can assist market followers in accomplishing this strategic objective and subsequently achieve either competitive advantage or parity with their more innovative rivals. The paper also discusses the legal constraints and limitations on the use of reverse engineering methodologies for purposes of cloning the patents, copyrights, and trade secrets of business rivals

Keywords: Reverse Engineering, R & D, Product Cloning, Patents, Copyrights, Trade Secrets

INTRODUCTION

In July of 1944, an American B-29 aircraft experienced engine trouble while completing a bombing raid on a Japanese steel manufacturing plant in Manchuria. Unable to return to its base, the aircraft made an emergency landing at Vladivostok in the Soviet Union. During November of the same year, two additional B-29 bombers were forced to make similar emergency landings in Vladivostok after completing combat missions to the Japanese mainland. At the time, the USSR maintained a position of neutrality with the Japanese Empire. Therefore, in accordance with international law, these pilots and aircrews were interned (Gorman, 1998; Drooker, 2001).

The internment of these aircraft had occurred during a pivotal reassessment of Soviet military doctrine and strategy. During the earlier stages of World War II, Josef Stalin and his military advisors had opted to forgo the development of large strategic bombers in favor of tactical aircraft that were easier and more efficient to mass produce (Zaloga, 1993). However, by 1943, Stalin renewed his interest in acquiring strategic bombing capability based upon (a) the growing success of the of the U.S. and British air campaigns against Nazi Germany (Spaatz, 1968); (b) German activities to develop bombers to strike North American targets (Moon, 1989); and (c) intelligence on the American atom bomb project and aerial delivery platforms for this weapon (Moon, 1989; Mason and Taylor, 1986). Therefore, Stalin ordered Andrei Tupolev to mobilize the Soviet aircraft industry to produce an exact duplicate of the Boeing B-29.

To complete this task of duplicating the B-29, the Tupolev Design Bureau completely dissembled one of the interned aircraft and measured/calibrated each of its 105,000 parts for subsequent duplication. Another of the bombers was used as a working reference model for engineers attempting to duplicate the American aircraft. The third aircraft was used as a training vehicle for Soviet air force personnel. To complete this complex manufacturing task, Tupolev mobilized over 100,000 workers, engineers and scientists from all over the Soviet Union (Drooker, 2001). These aircraft industry employees completed their mission as directed and the Soviet version of this strategic bomber made its first public appearance over Russian airspace in May of 1947. In conformance with the directive of Josef Stalin, the Tupolev Design Bureau painstakingly analyzed and subsequently cloned the American B-29 in infinite detail. The new Soviet aircraft was identical to its American counterpart. The Tupolev TU4 even duplicated both (a) the metallic patches used to correct battle damage on the original American bombers; and (b) the Boeing logo etched on the rudder pedals of the interned B-29s (Drooker, 2001).

This Soviet aircraft design effort is perhaps one of the first large-scale/systematic attempts to duplicate and subsequently manufacture a product substitute based upon reverse engineering methodologies (Drooker, 2001). Reverse engineering represents a technique which seeks to extract "know-how or knowledge from a human-made artifact" (Lari and Lari, 2005:89). Samuelson and Scotchmer (2002) indicate that reverse engineering is often a legally permissible method for new firms to overcome a variety of competitive barriers. …