Software patent cases appear to be among the fastest-growing type of litigation as industry players seek to establish a strong competitive position. Five out of the nine largest verdicts since 2006 have been in the software/ Internet domain with aggregated damages of $4.8 billion*.
Evidence from source code is by far the most hard-hitting proof and about 90% of the law firms we work with are looking at source code as the most efficient method of unlocking information.
Imagine finding 'the needle' in a stack of needles in complete darkness! Analyzing source code for evidence during a litigation is more difficult than other forms of discovery and can get tricky. Here are some best practices -
- Schedule it right - Review all other technical literature before analyzing the source code. It helps you get a good grasp of the architecture, design, functional specs, use cases and put things in perspective.
- See the parallel world - If the product is running on a closed/ proprietary platform, review technical literature of similar product(s) from the 'Open Source' ecosystem. It gives a good overview of 'What' and 'Where'.
- Go beyond the source code - Technical evidence lies all over. Go beyond the blast radius and analyze all related artifacts including various libraries, API (application programming interface), installers, user interface, etc.
- Divide & Conquer - It is cost prohibitive to go through every line in the code base. Use targeted keywords to identify relevant functional modules - mapped to the infringement theory. Deep dive for evidence on the subset.
- Arm yourself - There are tools that help you surf and analyze the code. Source code comments are a gold mine for evidence. 'Comment extraction' utilities are extremely helpful, more so in trade-secret lawsuits. Use them.
- Always triangulate facts - Being technically myopic can be disastrous to the outcome. Identify what is missing, explore alternate theories, and look out for additional evidence in source code based on deposition testimonies, response to interrogatories, etc.
* 2011 Patent Litigation Study by PricewaterhouseCoopers