Software innovation is growing at an incredible rate in the United States. This means that for many software companies and innovators, so are software patents and software patent litigation. As software programming evolves, the law and legal precedences also change, and the various courts and agencies that apply and interpret them must adapt to a rapidly changing industry and legal landscape. To help throughout the whole litigation process, software experts can provide advice that is essential to success in a ruling.

Why You Need A Software Expert Witness

One of the more challenging aspects of a software patent is the abstract nature of software itself. In 1972, the Supreme Court ruled in Gottschalk v. Benson that software patents are not patentable as essentially algorithms, which are considered unpatentable subject matter. The Gottschalk precedence remained in place, but during the 1980’s and 1990’s, the Federal Circuit Court of Appeals (the Federal Appeals Court which primarily handles patent decisions) made a number of rulings that eroded Gottschalk’s limitation and led to a wide variety of decisions regarding software related patents. As a result, software patents and software patent litigation has became a significant part of the patent landscape. In the past several years, a number of developments surrounding the America Invents Act (AIA) and certain recent Supreme Court cases (such as Alice v. CLS Bank International) are again dramatically impacting the software patent landscape.

Cases involving software patent infringement require intensive preparation and resources to understand claims and the comparisons. Mapping out the specification in relation to the accused infringing product involves in-depth investigations and comparisons of software code and functionality. Software is utilized by nearly every industry and its varying functions, and its uses can be complex and difficult to understand without the right experience and expertise.

Even when the software, the software patent, and/or trial preparation seems straightforward, experts are crucial. It takes a trained and patient expert to navigate the proper path within the parties’ respective code and identify sections and segments relevant to the litigation and their client’s theories and interests. These portions of code can be a mere few hundred lines or they can number in the millions of lines of code.

When To Hire A Software Expert Witness

Every stage of the litigation process can benefit from the experience of an expert. Beyond the testimony, experts help analyze code to establish a defense and effectively conduct and review software related discovery. When working with a legal team who has extensive knowledge about software patents, an expert witness is essential in understanding and interpreting the complicated and difficult nuances of software.

Hiring an experienced software expert before any paperwork has been filed can save time, money, and credibility with the court and avoids having to amend or refile pleadings. During the initial review of the subject material (i.e. source code, patents, etc.) with an expert, attorneys and their client can better understand the realities of their case from a technical perspective and develop the necessary theory and strategy.

What A Software Expert Witness Can Do

The actual process of analyzing the software program’s code requires a lot of experience and skill. Even the most basic programs require a deep understanding of the intricacies of a complex matrix. Many programmers and software engineers are capable of reading the code; good experts can execute comparison analyses using the relevant programming and coding languages to understand the software history. Experts can help analyze code to establish and focus your theories of liability or defense.

In addition to analyzing and comparing software, software expert witnesses in many instances must provide testimony prior to and at trial. This is a much different skill set than reviewing and deciphering code in front of a computer screen. Experienced software expert witnesses understand not only the subject of the litigation, but also the litigation process itself; familiarity with the judicial system and how it works is crucial to presenting articulate and effective testimony. It is essential that a testifying software expert is comfortable under the pressure of a cross examination and can turn the complicated nature of software code into easily digestible information for a jury or judge.

Today, it is estimated that the patent office issues roughly 40,000 software patents every year out of approximately 300,000 total patents issued. This seemingly endless stream of new software patents helps incentivize and secure software innovation, which as a whole improves our lives and jobs. With so many patents being issued and the legal and technological landscape constantly changing, the amount of litigation instituted to enforce and/or challenge such patents continues to increase. Regardless of which side of a software patent proceeding you are on, or what stage such proceeding is at, a qualified software expert very likely can provide significant benefit to your position and could possibly be the difference maker for your success.

Author Bio:
Brian Siebken is a Software/Technology Litigation Support Consultant at Eureka Software, a software development and software expert witness firm based in Austin, Texas.  He has worked closely with Eureka founder and software expert witness Monty G. Myers in support of Mr. Myer’s role as an expert in a wide range of patent, trade secret and other intellectual property litigation matters. Mr. Siebken’s focus includes review, research and understanding of technology, patents, prosecution histories, prior art, pleadings, reports, depositions and other documentation relevant to expert witness analysis and testimony, as well as research and investigation of relevant materials and standards applicable to each particular expert engagement.  He also assists as needed in the drafting and review of expert reports and declarations and along with coordination and communication between the expert witness and the client.