May 15, 2021

Volume XI, Number 135

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Unauthenticated Source Code Found Inadmissible

In Wi-LAN Inc. v. Sharp Elecs. Corp., Nos. 2020-1041, 2020-1043 (Fed. Cir. Apr. 6, 2021), the Federal Circuit affirmed a district court’s summary judgment of non-infringement.

The technology at issue concerned deinterlacing video for televisions. To ensure high-quality images, defendants’ accused televisions included a “system-on-chip” that allegedly performed infringing deinterlacing functions. Wi-LAN obtained printouts of the source code used by the system-on-chip in both defendants’ products from third-party manufacturers along with declarations by their employees purporting to authenticate the documents. But the district court granted summary judgment of non-infringement because the printouts were inadmissible hearsay and Wi-LAN therefore “lacked sufficient admissible evidence to prove direct infringement.”

The Federal Circuit agreed that the source code printouts are inadmissible. According to the Court, Wi-LAN failed to show that the printouts satisfied the business records exception to the hearsay rule because it failed to establish that the third-party declarants will be available to testify at trial. The Federal Circuit also held that Wi-LAN cannot use its expert as a backdoor to introduce the unauthenticated source code.  

The Court also affirmed the district court’s claim construction of two claim limitations.

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© 2021 Finnegan, Henderson, Farabow, Garrett & Dunner, LLPNational Law Review, Volume XI, Number 109
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Eric Magleby Patent Attorney Finnegan
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Eric Magleby focuses on patent prosecution and client counseling in the automotive, robotics, and consumer products industries. 

Eric’s prosecution experience covers numerous products in a variety of fields, including the automotive, consumer products, manufacturing, medical device, robotics, and sports and recreation industries. He advises clients through various stages of patent application prosecution, including drafting, responding to office actions, and examiner interviews. He also advises clients in infringement and invalidity claims....

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Christina Ji-Hye Yang Patent Litigation Attorney Finnegan Law Firm Washington, DC
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Christina Ji-Hye Yang focuses her practice on patent litigation and client counseling in the areas of biotechnology and pharmaceuticals, with particular emphasis on Abbreviated New Drug Application (ANDA) cases.

Christina is involved in all phases of litigation, including pre-litigation analysis, fact discovery, and expert discovery. She also has experience in Section 337 litigation at the International Trade Commission (ITC) and post-grant proceedings at the Patent Trials and Appeals Board (PTAB), including inter partes reviews (IPRs). Christina has also advised clients in...

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Esther H. Lim Patent Litigation Attorney Finnegan Law Firm Washington, DC
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Esther Lim has twenty-five years of experience in patent litigation, portfolio management, licensing, and counseling. She has litigated extensively before federal district courts, the International Trade Commission (ITC), and the U.S. Court of Appeals for the Federal Circuit (CAFC) in complex matters involving a wide range of technologies from electrical to mechanical to pharmaceutical. Esther served as the founding managing partner of Finnegan’s Shanghai office. She is the past president of the D.C. Bar with 110,000 members.

Over two decades of diverse professional endeavors and...

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Elizabeth Ferrill Patent Attorney Finnegan Law Firm
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Elizabeth Ferrill is an “undisputed expert on design patents” who is “always updated and enlightening others with her deep knowledge,” “very involved in the design bar,” and “gives her clients an outstanding service” as noted in Intellectual Asset Management Patent 1000. She focuses her practice on all aspects of design patents, including prosecution, counseling, post-grant, and litigation.

Elizabeth counsels clients who hold design patents as well as those accused of infringement. She has experience with design patents related to consumer and industrial products, medical...

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