Software IP is different than most other IP in that there is no tangible end product. Based on my experience as an expert witness and consultant, the following are a few tips and strategies that might be considered regarding litigation of software IP.
- When requesting software during discovery, request commented source code, executable files, intermediate files, build files, data files, design documents, manuals, etc., in their original electronic formats.
- Even if the source code from opposing parties is written in different languages, infringement could still occur.
- If security is a concern, it might be possible to examine software source code on a computer with no internet connection and with USB ports disabled.
- Signs of potential source code copying include similar variable and function names, author names, comments, lines of code, and program flow.
- To examine code for content that might have previously existed, request all past revisions of source code files between a specific start and end date.
- Comprehending what the software is doing by reading source code could be a time-consuming effort. Extra time may be needed for that effort.
- Extracting executable code from a device and performing a “reverse assembly” to make it human-readable may be possible and could require significant effort to understand.
- Use of open source and third-party source code is common. It must first be identified and removed from the file set before examining the rest for IP content.
- CodeSuite® is a tool specifically designed to detect possible copying and plagiarism of source code and executable code.
- In looking for an expert, a horizontal expert (expert in a technology across many products) may be preferable to a vertical expert (expert in a product using many technologies).
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