From Source Code to Courtroom: Source Code Review Best Practices for Software Patent Litigation
As technology evolves day in and day out, software disputes are increasingly apparent in patent infringement and trade secret cases.
While software applies to many industries, the common denominator is source code. Source code is the skeletal structure upon which a program is built and a treasure trove of evidence in case of software patent infringement. Owing to the increasing number of software disputes, source code review is now integral to fact discovery in high-stakes software litigations. Here are a few best practices for source code review to consider before executing one:
Negotiating a Protective Order
A protective order presents an opportunity to shape the scope and use of source code at trial. Often overlooked, the protective order protects the proprietary and confidential documents presented during a trial. By default, the protective order states clauses to limit and safeguard any confidentiality breach, including certain restrictions on source code examination.
A templatized protective order often restricts access to continuous blocks of source code and printability, note-taking protocol, and the number of source code computers assigned for review. Thus, negotiating a protective order is crucial when evidence discovery relies on the source code examination.
It is best to run the protective order claims through a forensic expert to remove any bottlenecks during the review process. A well-drafted protective order optimizes review time and dollar value, laying the foundation for a smooth source code examination.
Getting the Source Code Early in the Discovery Process
Software litigations require a forensic expert to conduct source code analysis on the readable version of the code. The code should be requested early in the discovery process to allow thorough code analysis and preparation, significantly saving time and money.
Early access to source code repositories allows the expert to delve deep into the code, identify nuances, and provide technical insights from the examination. Given the limited hours allotted for source code analysis, even an extra day or two can significantly affect the quality of findings and expert opinions. Moreover, early access to the source code allows the legal team to identify and assess key components and their relevance to the infringement. This strategic advantage can lead to greater admissibility of source code, presenting compelling evidence for court proceedings.
Source Code Version
In software litigation matters, determining the right code version is fundamental in proving infringement in a misappropriation case.
A software code evolves throughout its lifecycle to meet regulatory requirements, bug fixes, system changes, and other external demands. Cumulatively, these changes cause the code to be millions of lines, making it bulky for analysis. These updates may also cause significant changes to the software over time and can result in a completely different product during the dispute.
While accessing the entire version control repository might be far-fetched, the plaintiff can ask to review a specific code version that indicates infringement evidence. Counsel should work closely with technical experts to locate pertinent sections of the code and initiate negotiations for source code structures, file hierarchies, and more for a seamless examination for discovery.
Reviewing the right program version allows the code examination to be in tandem with claims, with specific discovery requests of software modules related to the dispute. Narrowing down the code removes irrelevant material and keeps sensitive information intact from the source code examination.
Tools For Source Code Review
Forensic tools are included in the review process to help source code experts and attorneys analyze the code. Basic tools are sometimes provided by default; however, the examiner should suggest additional applications that are the most helpful for thorough and efficient review. These industry-standard tools can be requested prior to the code examination for a smooth analysis-
WinGrep/PowerGREP: A highly valued tool to search through large file contents using specific keywords.
Microsoft Visual Studio: This is a graphically based environment for reviewing source code and can also be used to get physical printouts.
Understand: This tool enables static code analysis through an array of visuals, documentation, and metric tools.
Notepad ++: An indispensable tool for experts across the board to read text files and unknown file types, add line numbers, and format code files. Experts can use the line numbers for reference and extract physical copies and PDFs for expert reports, depositions, demonstratives, and more.
Cygwin: A command line tool to traverse source code production at the command line level and perform search functions over source code production.
Similarly, the source code computer should also be inspected before the analysis. An updated device will render multiple tools faster, increasing the expert's efficiency.
Presenting Source Code Evidence in Courtroom
Source code review is a high-cost and complex ordeal to present as legible evidence in court. It involves presenting and persuading the judge and jury to consider the infallible evidence, which is the source code.
Introducing the source code evidence through expert testimony is the most common practice. The expert witness simplifies source code evidence and explains the findings to the jury. A seasoned expert presents a lucid understanding of the role of the code, demonstrates the product’s functionality, and finally draws attention to the code evidence and its implications. The presentation is most critical- too much technical explanation, and it is an alien language to the jurors, too vague explanation, and the story's foundation crumbles.
Hire The Right Source Code Expert
A source code reviewer is an end-to-end participant in a software litigation matter.
From negotiating the terms of a protective order to presenting code evidence in a courtroom, the expert can make or break a case. Thus, finding the right source code reviewer with prior experience in the domain in question becomes crucial. A seasoned source code expert searches, supports, and strategizes, presenting source code at trial.
As more attorneys adopt the benefits of source code review evidence in litigation, finding the right source code expert becomes even more important. Lumenci experts have decades of experience providing unbiased source code reviews, expert reports, and testimony for patent infringement, copyrights and trade secrets, and software litigation.
Ayantika Dhar
Marketing Executive at Lumenci