ITC Denies Sanctions On Microsoft: What Was The Real Risk?

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Continuing with the coverage on the ‘Smartphone Wars’, Microsoft gained a strategic battle with the ITC recently denying a motion for Microsoft to be sanctioned for allowing its expert to review secret Android code.

Microsoft is currently contending that some Android-powered Motorola phones infringe on Microsoft’s patents. As required by the court, Motorola (and Google, after being served a subpoena in April 2011) subsequently produced Android OS source code for review by Microsoft’s expert, Robert Stevenson.

Dr. Robert Stevenson is an Android expert and has in the past provided consultation services to Microsoft and Hewlett-Packard. In the second week of August, Google filed a non-party appeal in the ITC alleging that Microsoft had inappropriately exposed secret Android source code to the expert, which creates a business risk since Dr. Stevenson advises Google’s competitors. It did not take much time, though,
for the legal pundits to assess this appeal as without merit. Microsoft testified that Dr. Stevenson had only advised on legal matters, and that the exposed code was covered under the protective order under which the expert was covered.

Naturally enough, the ITC judge denied the appeal and reasoned that Google had filed to show that it tried to resolve the conflict with Microsoft directly. Which for those familiar with how Google handles its own litigations, only meant that this time, Google’s act did not fly.
Stepping away from the battle smoke, however, Google’s appeal brings to the table an important question: “How big is the risk associated with source code reviews in technology litigations?’

Source code is one of the most closely-guarded artifacts in any technology company, and the security cover is ten times greater when in litigation. All access to the artifact is restricted through a protective order, which the experts sign, effectively bringing them under strict obligations to
respect the confidentiality. More often than not, protective orders contain a clause which bars the signatories from participating in any technology consulting or prosecution in the relevant technological area until 2-3 years after the case closure.

And that is just the legal cover. Technology giants such as Google are even more particular on technical restriction on the source code artifacts. Source code review is almost always limited to a static review (which means the code cannot be compiled by an expert). The computers used are isolated from any network, and the USB slots disabled, so that the code cannot leave the computer. And a paralegal or attorney is assigned to oversee the review and pretty much not letting the experts leave sight. Imagine taking a toilet break knowing a person is waiting on you just outside the door!

And even if the expert takes off with hand-written notes, he cannot possibly scribble down any sizable portions of the code that somebody can reconstruct to pose sizable (or any at all) competition to the business. Source code productions rarely come below say a million lines. Rarely.

In the end, noise around source code misappropriation (in cases such as these) works as an attractive bargaining chip at the very least. But as courts get smarter, such chips would only weigh heavier on the pocket.

Disclaimer: Views expressed are entirely personal and do not constitute legal advice.

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