Clean room

A clean room, in the legal sense, is an independent development protocol by which a company isolates the team designing a product or software from any protected information belonging to a third party, in order to be able to prove that the result reproduces neither a trade secrets nor code protected by copyright. The clean room does not protect against patent infringement, which is established independently of any copying. It is, however, decisive for trade secrets and software, where copying must be proved.

Organising a clean room

First, two teams are separated: an analysis team, which may study the competing product or the public specifications and extract from them a functional description free of any protected information, and a development team, which receives only this description and has never had access to the original product or code. Next, an intermediary, often a lawyer, checks each document passing from one team to the other and keeps a log of exchanges. Finally, everything is documented: composition of the teams, attestations of no prior access, successive versions, certified dates. The protocol is particularly useful where the company has recruited employees from a competitor, in the context of employee mobility.

The evidentiary value of the clean room

In trade secret law, Article L. 151-3 of the Commercial Code recognises the lawfulness of acquiring a secret through independent discovery or creation, as well as through the observation or disassembly of a product available to the public. The clean room provides proof of that independence. In copyright law, it shows that the similarities between two programs result from functional constraints and not from copying the code, which rules out software infringement. Its strength depends on the rigour of its implementation: a protocol that is declared but not applied, or a documented leak of a protected document to the development team, ruins the demonstration. The texts can be consulted on Légifrance.

Key points

In practice, the clean room is an organisational investment, to be decided before development starts and not when the dispute arises. It is combined with a freedom-to-operate study for patents, which the protocol does not cover. The firm designs these protocols and defends them in court, as presented on the page trade secrets lawyer.