• Have us give input into schedules. We know best how much work an analysis is going to take. And some of us have lives outside of work (not me, but I’ve heard that others do). Don’t give us a schedule without our input and expect us to meet it.

• Don’t hire us just to keep us off the other side. I’ve had this happen. It’s flattering, but it’s also unethical. I need to make a living. Also I will never work for you again, and I will warn my colleagues about you.

• Involve us with crafting the strategy. Don’t let us work in the dark and then complain, for example, that our invalidity argument hurts the non-infringement argument or vice-versa. And by the way, a great argument for one will always make the other much more difficult to show.

• Involve us with claim construction. We have the appropriate experience to figure out a decent claim construction. Too often I’m called into a case where the claim construction makes little sense to me. I need to be educated about how the claims are construed and then I need to see if I can work with them. Sometimes adding or removing a word from the claim construction would make things significantly easier for me to understand and explain to the judge and jury.

• Give us enough time to do our jobs. Maybe this is a pipe dream. Lately, cases have been more and more compressed and I’m brought in later, probably to save costs. But it hurts the case and stresses us out.

• Don’t antagonize us. We’re they guys who are going to help your client by clarifying their position and explaining difficult concepts to the judge and/or jury. You don’t want us ticked off, even if we really are stupid jerks. You want us in a good frame of mind and happy about what we’re doing. At least until we’re done testifying.

• Explain your positions to us patiently. If you can’t get us to understand it and adopt it, how can you get a judge or jury?

• Don’t tell us we have to adopt your positions or we’ll lose the case. We’re independent and unbiased. The threat of losing the case is not a reason for us to support your position, and stating this can come back to haunt both of us eventually.

• If things aren’t going well, meet face-to-face. It’s easier to communicate about difficult subjects. It’s easier to wave hands, draw diagrams, point to things. And it’s more likely for both to see each other as humans, not someone being difficult.

• Don’t expect us to understand all the legal issues. I’ve met lawyers who didn’t understand all the legal issues. I actually do understand legal issues more than most experts because of my experience and my writing on the topic. Yet there are still gaps. And the lawyers can disagree. I’ve been in many long sessions where lawyers argued about legal issues.

• Don’t believe you understand all the technical issues. Some of the lawyers I’ve met were once great engineers. Others have no engineering experience whatsoever. Some will take my word completely and others will fight me. I don’t mind reasoned debate—in fact I enjoy it. But remember that my understanding of the technical issues is ultimately what I will present in my reports and my testimony.

• Be clear in your instructions. We know you’re in a hurry, but this is critical to getting good information. I’ve had cases where I got a quick call to do some analysis and then spent the weekend setting up equipment, getting results, and writing a report, only to find there had been a miscommunication about what was needed. Sure I get paid per hour, but I’d still like to know I’m doing something useful. I’m sure you and your client prefer that too.

• Have us sit in on depositions. We can add a lot of knowledge and we can help craft the direction of the questioning. I was in one deposition where, searching the Internet, I found an expert’s presentation slides promoting a software method while she was testifying she would never ever use such an “unreliable” method. I’ve also had lawyers call me after a “very successful” deposition where they thought they’d uncovered some really useful facts but were asking questions about the wrong technology.

• Don’t write the reports and expect us to just sign it. Our reputations and careers are on the line, not yours. Unfortunately, some experts do this and collect their checks. I won’t and neither will any expert worth his or her hourly rate.

• Expect us to sleep some time. OK, the lawyers themselves get little sleep during a case. Me too. I just prefer that you act as though you care about my getting rest even though we both know I won’t. So don’t tell me to be available at midnight, ask me if I can please make myself available at midnight even though you know it’s a burden. It just sounds nicer.

• Pay us on time or be honest about any problems. Sometimes clients run into financial trouble. I prefer to work for a client who is honest about financial trouble than one who constantly tells me “the check is in the mail.” Usually this is an issue with the client not the lawyer, but I’ve had lawyers misplace my final invoice, simply because they had moved onto other more pressing matters. My payment is a pressing matter, and a late or missing payment means I’m unlikely to be available the next time you need my expertise.

• Don’t negotiate our fees after the case is over. This is just poor business practice and makes me not want to work with you again. The time for negotiation is before hiring me, not after I’ve put in time on the case.

• Remember that our job is to be honest and unbiased. Expect us to point out the bad along with the good. If we find your client’s case doesn’t have merit, at least be happy we discovered that before the other party’s expert informed you at trial. You can settle early or limit the damages or just know that you did the right thing.

As I wrote my book it became filled with references from Wikipedia. Some of the information I knew was correct but I needed a formal reference and Wikipedia seemed good enough. Other information I could verify at multiple sites, but the Wikipedia definition was always concise. I had been told by many attorneys that Wikipedia references were not considered legitimate in court, and I never use them in expert reports for litigation, but I figured it was good enough for my book. It was only when one of the reviewers pointed out that using Wikipedia would hurt the reputation of my book, especially among lawyers, that I gave it a second thought. I went back and found alternate references and though the main concepts that I was referencing in Wikipedia were essentially correct, it was the details that Wikipedia often got wrong.

And I knew this fact already. My Cornell roommate Rob Smigel had gone on to be a fairly famous comedy writer for Saturday Night Live. The Wikipedia page originally said he had graduated from Cornell. I figured this needed correction, because Rob dropped out (before nearly failing out) and transferred to NYU where his dad sat on the board. Rob’s story is actually that old cliché where his dad insisted he become a dentist like himself, but Rob only wanted to be a comedian, a career that his dad strongly disapproved. My corrections to the page were regularly removed because I couldn’t document this fact with external references, yet most of the other information in the bio was unreferenced.

This points out one significant problem with Wikipedia. In the early days, people entered what they wanted with little if any fact checking required. Eventually those early pages, and there are probably millions of them, became accepted as incontrovertible fact. I have at least one friend whose Wikipedia page was created by colleagues as a joke, yet it gets quoted as true.

Later I submitted a reference to a Rolling Stone interview with my roommate Rob Smigel where he mentions not completing a degree at Cornell, but somehow a Wikipedia editor did not find even this credible enough and edited my sentence into a short phrase that has since been removed. In fact, as of today all references to Cornell have been removed from Rob’s bio even though he attended for two years.

So this points out yet another significant problem with Wikipedia. There are now editors who have taken it upon themselves to be the correctness police. They go about removing edits of others if they don’t conform to their own beliefs. Many of these editors boast tens of thousands of page edits. Wikipedia has set up rules for editing, but there is only a long process and many level of effort to disputing an edit, that still rely on these same biased Wikipedia editors who do not necessarily have any expertise in anything let alone the subject under consideration. In fact, although my company and my software is the most widely used copyright infringement detection software in court cases, even simple links to our website in Wikipedia have all been eventually removed by an editor who says this is self-promotion. Why is self-promotion bad if the facts are provably true?

Even Wikipedia states that the information on its site may be incorrect, as confirmed in this Wikipedia page about using Wikipedia¹:

Wikipedia’s most dramatic weaknesses are closely associated with its greatest strengths. Wikipedia’s radical openness means that any given article may be, at any given moment, in a bad state: for example it could be in the middle of a large edit or it could have been recently vandalized…

Where does Wikipedia stand in courts? There have been many references to Wikipedia in court cases, but the rule is that it’s a bad thing to do. Recent studies have shown that courts are allowing Wikipedia references much less than in the past^{2, 3, 4, 5}.

So my advice is that Wikipedia is great for cocktail party banter, but don’t rely on it for critical facts. The anonymity of its contributors, the poor fact-checking on the early contributions, and the bias of unqualified volunteer editors make it an increasingly inaccurate source that is losing its initial attraction for many.

Footnotes:
1. Wikipedia:Researching with Wikipedia
2. The Citation of Blogs in Judicial Opinions
3. Badasa v. Mukasy, 2008
4. Bing Shun Li v. Holder, 2010
5. Cohen v. Google, 2010

Overall the book covers the following topics:

• Key concepts of software intellectual property
• Comparing and correlating source code for signs of theft or infringement
• Uncovering signs of copying in object code when source code is inaccessible
• Tracking malware and third-party code in applications
• Using software clean rooms to avoid IP infringement
• Understanding IP issues associated with patents, open source, and DMCA

You can purchase your copy from Amazon.com here.

Peter Huber makes some contradictory and misleading arguments where he claims that non-practicing entities are ruining innovation in America. On the one hand, he acknowledges that only a small percentage of patents, roughly 2% by his own estimate, end up court. Yet he also believes that “[o]ur patent laws have drifted way off course.” He states that “[t]he patent office now grants more than 4,000 patents a week” but neglects to mention that the total number of patent applications and the number of patent rejections have both similarly risen. And one major goal of USPTO director David Kappos, appointed in 2009 by President Obama, is to reduce the backlog of 1.2 million patents around the time he took office. Many more patents are being submitted and examined than ever before-—a sign of the vigorous spirit of innovation in America.

Dr. Huber’s logic is equally baffling when he claims that companies rarely sue each other but that companies spend lots of money collecting patents. Why would a company spend so much on worthless patents? Patents are used to protect their investments in technology, and the vast majority of patent lawsuits are between large corporations like the recent ones between Oracle and Google, Apple and Samsung, Dish Network and Tivo, and many, many others.

Dr. Huber claims that the Supreme Court’s decision in Bilski v. Kappos somehow agrees with his view that patentability must be restricted. In fact, this decision did just the opposite. While business method patents were rejected by the court, as expected, the patentability of software was expanded.

Dr. Huber claims that plaintiffs in the Eastern District of Texas almost blindly reward plaintiffs in patent cases, but a recent study by the Stanford
Intellectual Property Clearinghouse showed that plaintiffs in that jurisdiction win only 40.3% of the time.

Finally Dr. Huber gets to his point. Patent examiners and juries just aren’t smart enough to figure out which patents are good and which are “sketchy.” So instead, he wants the patent system changed to restrict inventors from owning the fruits of their intellectual labor. As an individual inventor I object to his condescension and to his attempt to limit this constitutionally protected driver of American innovation.

Which is Right For You?

Which product is right for you, CodeSuite or CodeSuite-LT? Click here for a table that compares the features of both programs so you can choose the right solution.

Second, Zelnick doesn’t foresee the possible ultimate business model of Righthaven. While I don’t agree or disagree with Righthaven’s motives, I believe I see where they’re going. Jerome Lemelson was perhaps the first patent troll, but definitely the first to reach $1 billion in personal fortune from his effort. My understanding is that he started by bringing actions against small companies that could not easily defend themselves and Japanese companies that didn’t understand U.S. patent law. These companies saw his royalty fees as small compared to the costs of hiring lawyers to study and defend the patent infringement suits he brought. After amassing a huge war chest, Lemelson went after bigger and bigger companies and sought bigger and bigger payments. The more capital he had, the easier it was to win these battles.

While Righthaven will probably never collect the multimillion dollar awards that Lemelson did, consider that nearly everyone in the world writes. There are thousands of novelists, thousands of journalists, thousands of researchers, and millions of bloggers. And copyright also applies to artists, filmmakers, and computer programmers. Righthaven, and companies like it, can potentially collect more than Lemelson even hoped for, and at less expense.

I believe that Righthaven and its business model should not be underestimated. The solution to protecting yourself is more complex than simply not copying. The exciting part is that this new business model will create new areas of legal effort and will require the best technology to allow the protection of both copyrights and free speech.

Maybe you’ve wondered, like I have, what’s going through the minds of these people. Do they think they won’t get caught? Do they not care? Maybe they figure they’ll live it up while they can? Dreier’s letter to the judge in the case, prior to sentencing (downloadable here) might give some insight into Dreier’s state of mind. Some say this was just a way to get sympathy from the court (in which case it appears to have worked). To me it seems sincere. It definitely doesn’t excuse Dreier’s behavior, but it does possibly explain how such a successful man could end up in his situation and what was going on in his mind.

When using the RPG, an expert selects the type of case, type of report, types of technologies involved, types of tools used, and expert background profiles from a GUI. Then a Microsoft Word draft report is generated that includes all of the selected generic information intermixed with blank sections where case-specific information should be filled in manually.

Currently, many experts either dig through their prior works to find specific descriptions or write them from scratch each time. Maintaining a library of generic report elements is a challenge, especially when multiple experts are involved. RPG acts as a version control system between multiple experts who can upload and download detailed descriptions of experts, technologies, and tools from a central server. The reports are generated according to specific formats, so an entire team of experts can easily produce reports that are consistently formatted with the most up-to-date descriptions.

RPG also keeps synced descriptions of CodeSuite, so it can include the most up-to-date descriptions and pricing of the tools without having to search the S.A.F.E. website or CodeSuite help files.

If you’re interested in trying out RPG, contact our Sales Department.

You’re probably wondering what is the difference between CodeMeasure and CodeCLOC. CodeMeasure is a simple, inexpensive program for generating the CLOC measurement statistics for multiple versions of a program. CodeCLOC, intended for litigation, compares only two versions of code but produces a detailed database of results that can be further filtered and analyzed using CodeSuite or your own custom tools. The results from CodeCLOC can be presented in court and the CodeCLOC database can be presented to the opposing party for verification.

CodeSuite 4.0 also has a few other nice features including a revamped user interface. There’s also a new function to generate statistics from any CodeSuite database and the command line interface has been enhanced for integrating with other programs. CodeSuite 4.0 is available for download here and can be purchased on a term license or project basis. CodeCLOC is priced at $20 per megabyte. A one year term license for CodeSuite is $100,000.