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Patent Infringement Analysis

 

JurisLogic is experienced with patent litigation involving computer software, working for both plaintiffs and defendants, performing analysis to determine whether the accused device is infringing or whether the claims read on to the accused device.

 

It can be particularly challenging to determine whether the claims of a software patent read on to a particular accused device - initially only the externally observable behavior or some other factual evidence leads the patent holder to the suspicion that the device might infringe.

 

JurisLogic can work with a client's attorneys to construct a claim lexicon and claim construction charts for each patent in suit.

 

JurisLogic can also assist in researching likely prior art that may anticipate a given patent.

 

JurisLogic specializes in all aspects of infringement analysis for software patents or those patents which are implemented using microprocessors, including, where appropriate, reverse engineering of existing products.

 

 

Copyright Infringement & Trade Secret Misappropriation Analysis

 

JurisLogic specializes in the analysis of computer software for copyright infringement claims, examining software for significant similarities at various levels ranging from literal similarity (verbatim) to substantial similarity of non-literal elements (where the copying is not verbatim, but is derivative nonetheless; JurisLogic has extensive experience with AFC (Abstraction-Filtration-Comparison) analysis in this context).

 

JurisLogic also specializes in the analysis of computer software for trade secret misappropriation claims, to help make a determination whether or not a program in fact practices a claimed trade secret.

 

Computer programs are written in a human-readable textual form called source code. This source code is translated or compiled into a form that can be used to control the actions of a computer. This translated form, also called object code or executable code, when it is executed makes the computer behave in a particular way.

 

In order to save time, and that really is the only reason why one programmer copies literally or non-literally computer programs written by someone else, the programmer might for example copy:

 

• The human readable source code. This is not normally made available to the general public but some programmers, when they leave the employ of one company have taken source code with them, or electronically transmitted it outside the company.
• The manuals and other documentation which describes what the software does and how it works.
• The "user interface" with which the user of the program interacts.
• The internal format of the data files - if this is copied it is often to develop another program that will create "compatible" data files, or process the first program's data files.
• Algorithms, business logic and other programmatic elements embodied into the software, that may constitute trade secrets.

 

JLI's special skills lie in determining which similarities are the products of constraint (and therefore can be exonerated) and which are not (and therefore are indicia of copying or misappropriation).

 

 

Software “Clean Room” Development

 

The term "clean room" is borrowed from the ultra-clean, filtered-air rooms in which silicon chips are made. As originally used with respect to software, the term refers to a way of creating of software that can prove to a court that no copying occured of protectable elements of the original program.  The objective of a software clean room is to ensure truly independent development of the desired technology using a protocol that ensures that the software is developed without access to information or copyrighted material that would violate the copyright, trade secret or contract rights of any third party. As a part of this development protocol, thorough audit records are maintained to document all information and materials the developers rely upon during development.

 

Such a clean room is used under several different circumstances which include:

 

• The development of a new program designed to compete with or to interoperate with an original program (see Sega Enterprises v. Accolade).
• To remediate a situation in which there has been an allegation of improper similarities (see such cases as Computer Associates v. Altai or Nintendo v. Atari).

 

The essence of clean room software development in this legal sense is:

 

• The establishment of development procedures that will create a meticulous audit trail showing every aspect and stage of the development process.
• The creation of design documentation that records the functional requirements of the intended program that is demonstrably devoid of any protectable elements.

 

Three different groups of people are required for a clean room development:

 

• The technicians in the clean room team, uncontaminated by the original proprietary software.
• The technicians outside the clean room, who study the original proprietary software and prepare the functional specification for the clean room team.
• The supervisor(s) of the clean room, who are interposed between the team inside and outside the clean room. Such supervisors normally consist of both legal and technical personnel.

 

JurisLogic has had experience of working in all three capacities in clean room development (albeit for different projects).

 

 

Technical Due Diligence

 

JurisLogic specializes in technical due diligence for mergers, acquisitions, company partnerships, software licensing transactions, and internal product audits. In particular, we are skilled at analyzing programmatic materials to identify and categorize potential third-party exposure in those materials, using a combination of automated tooling and visual inspection (which allows us to apply our combined decades of experience at analyzing programmatic similarities in context, and thereby assess for relevance).

 

Over the course of thousands of software audits, we have crafted a unique set of skills that allow us to review data sets ranging from small to exceptionally large, working to tight time lines either in JurisLogic's own secure facilities or on site at a law firm or transaction partner facility, to create reports that provide our clients with easy-to-digest, insightful and useful information.

 

Because of JurisLogic’s strong connection to the legal profession, we are well-versed in the potential implications flowing from third-party exposure in a body of software, and are comfortable discussing the often cryptic intersection between technology and licenses.

 

JurisLogic can help manage the entire technical due diligence process, from initial conversations with a transaction partner or internal team, to the coordination of other consultants, to the actual analysis and reporting of findings. Where needed, we can perform “remediation reviews” to validate any remediation actions flowing from our findings (such as code deletion, refactoring or substitution).