Source Code Printout
Expert as a Substitute for a Fact Witness?
Wi-LAN Inc. appeals two related judgments of the United States District Court for the District of Delaware, on summary judgment in one instance and by stipulation in the other, holding that Sharp Electronics Corporation and Vizio, Inc. did not infringe the asserted claims of U.S. Patent No. 6,359,654 (“the ’654 patent”) and U.S. Patent No. 6,490,250 (“the ’250 patent”). We affirm.
(…) Here, the district court concluded that the source code printout could not be admitted under Rule 703 because it was not authenticated and, as a result, Wi-LAN was attempting to use Rule 703 as a “‘backdoor’ to allow the admission into evidence of otherwise inadmissible declarations and other materials simply because they might assist the jury’s evaluation of an expert’s opinions.” J.A. 31. We agree. Wi-LAN attempts to do exactly what is impermissible under Rule 703 by using its expert as a substitute for a fact witness to circumvent the rules of evidence to admit otherwise inadmissible evidence.
Wi-LAN argues that experts typically rely on material, like source code, in reaching opinions about infringement. That is obviously correct. But Wi-LAN has not made a showing that source code experts reasonably rely on unauthenticated source code printouts.
In light of these admissibility issues, Wi-LAN’s fallback position is that the district court should have granted it additional time to obtain an admissible version of the source code. We disagree. Wi-LAN had ample time to obtain the source code and to find custodial witnesses to authenticate the source code over the course of discovery but failed to do so.
Wi-LAN had been on notice since early 2016 that it was going to need the system-on-chip source code from third parties to prove its direct infringement case. Throughout the litigation, Wi-LAN repeatedly requested extensions of time to obtain the source code from the third-party manufacturers. Ultimately, however, Wi-LAN only procured a single printout version of the source code with declarations after suing the third-party manufacturers.
Wi-LAN, as the district court found, “had ample time and opportunities over years of litigation to obtain evidence of infringement from the system-on-chip manufacturers” but failed to do so. J.A. 32. Given this record, the district court did not abuse its discretion in denying Wi-LAN an additional opportunity to obtain an admissible form of the source code.
Secondary Sources: Charles Alan Wright, Arthur R. Miller & Victor J. Gold, Federal Practice and Procedure § 6274 (2d ed. 2020).
(U.S. Court of Appeals for the Federal Circuit, April 6, 2021, WI-LAN INC. v. SHARP ELECTRONICS CORPORATION, Docket No. 2020-1041)