By: Alan L. Mittman amittman@mlg.com

Many companies persist in the ill-founded belief that they cannot write a computer program or manufacture a product that functions the same as a competitor's program or product without infringing upon copyright laws or trade secrets protecting the product. A company may achieve this goal, however, by preventing its programmers or technological engineers designing the program or product from having access to the code of the program or to the product which the company is investigating -- in other words, to keep the programmers and technological designers in a "clean room," a concept that, although widely recognized in industry, is not one that is generally understood and correctly implemented. As a result, requisite details necessary to properly document lack of access are often overlooked, rendering a "clean room" defense strategy entirely ineffective. As a result, our firm has developed a practical method and important tips for implementing "clean-room" engineering procedures, a topic that holds particular relevance for your ability to successfully develop, produce and distribute "independently developed" technology products.

The best litigation result is the litigation that is avoided altogether. And, as we are all well aware, copyright infringement, trade secret or misappropriation litigation is expensive in time and money. The goal of "clean-room" engineering is that the "clean room" team of programmers or technological designers receives enough information to guide it in its writing of a competing program or designing of a competing product, but the "clean-room" team remains shielded from the "taint", from a legal perspective, of access to the copyright-protected work or others' technology, thereby providing a defense to, or avoiding entirely, costly and time-consuming litigation commenced by a competitor.

Thus, the basic focus of utilizing "clean-room" procedures is to isolate your technological design team from having any contact whatsoever with a competitor's or a similar product. The central concept inherent in the utilization of "clean-room" procedures is the complete and thorough prevention of any access by the technological designers who inhabit the "clean-room" to a competitor's copyright-protected or confidential information.

Moreover, a fundamental objective of implementing "clean-room" procedures is to comprehensively document, in writing, with painstaking accuracy, the complete lack of access by your design team to copyrightable portions and elements of a competitor's technology. Sound legal advice is necessary to accomplish this important goal.

If "clean-room" techniques are properly and closely followed, any similarities among competing systems you may produce and those of competitors can be explained as the result of legally permissible external factors, such as public-domain specifications, rather than as a result of illegal copying or misappropriation of a competitor's confidential information technology. Simply stated, when a product is created using a proper "clean-room" environment, the likelihood of success in defending a claim of infringement is increased.