Many of today’s consumer electronic devices contain embedded software. Frequently this software is automatically updated over the Internet to add new functions or fix bugs. Indeed, anyone with a smartphone is familiar with frequent “updates available” messages. While frequent software updates may make for more feature-rich and robust devices, it creates unique issues for patent litigants involved in source-code discovery.
On the one hand, a plaintiff patent holder frequently requires access to dozens of versions of source code in order to prove infringement. On the other hand, the defendant (or a third-party software provider) often has legitimate security concerns about disclosing its code. Unfortunately, these opposing interests create an environment for discovery disputes. Further complicating the situation is that source-code identification, production and review can be both time consuming and costly. Finding adequate time to identify, produce and review source code can be challenging when faced with discovery and expert deadlines.
