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Software Scan

The President's Column

When a legal case is argued in front of a jury, both sides' experts present their facts and the truth becomes apparent, right? Of course not--if it were that simple, experts and lawyers would not have much to do. In this month's Scanning IP section I discuss a recent study that tests which characteristics a jury looks for in an expert. You may be surprised.

There were a number of large lawsuits involving software IP in 2009. We know that CodeSuite was used in many of them (because of protective orders, we don't know all the cases where CodeSuite was used). In the Scanning the News section, I give some links to some of the biggest and most interesting cases of the year.

Send me your comments and critiques. I'm always interested in hearing from you.


Bob Zeidman
President, SAFE Corporation

Scanning IP

What to Look For in an Expert?

I recently came across a study in the Journal of the American Academy of Psychiatry and Law out of the The University of Alabama entitled "Credibility in the Courtroom: How Likeable Should an Expert Witness Be?" To be honest, I'm not sure I understand their conclusion:

The likeability of the expert witnesses was found to be significantly related to the jurors’ perception of their trustworthiness, but not to their displays of confidence or knowledge or to the mock jurors’ sentencing decisions.

Reading the paper doesn't make it a whole lot clearer for me, and I think their mock trial setup is a bit contrived, particularly since the jury consisted of psychology students, a demographic that you'd be unlikely to find on a real jury. Also there were only two expert witnesses for the comparison. To their credit, they discuss these potential shortcomings. I do think, however, that the paper points out something (that may have already been obvious)—there is more to being an expert witness than just being correct. Personality and presentation are strong factors.

On the other hand, I feel that this subjective aspect should be minimized. Experts need standards and measurable quantities whenever possible. Before I began developing the concept of source code correlation, the way software copyright infringement and trade secret theft cases were resolved was to have two experts give contrary opinions based on their years of experience. The judge or jury would tend to get lost in the technical details, a strategy purposely employed by some experts and attorneys, and a judgment would depend on which expert appeared more credible.

Instead, I decided to expand the field of software forensics and made it my goal to bring as much credibility to the field as DNA analysis, another very complex process that is well accepted in modern courts. I still believe that an expert's credibility and likeability will always be factors in IP litigation, but that the emergence of source code correlation and object code correlation provide standard measures that bring a great deal of objectivity to a lawsuit's outcome.

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Get Smart

SAFE offers training at our facility or yours or on the Web. Contact us to make arrangements:

MCLE credit in software IP

CodeSuite certification

Your New Office

Remember that you can now have your own secure office at the SAFE facility for storing proprietary software, running CodeSuite, analyzing the results, and getting onsite support. We're located at

20863 Stevens Creek Blvd.
Suite 456
Cupertino, CA 95014
(408) 517-1167

Scanning the News

Interesting Software IP Cases of 2009

Here is my list of the most interesting software IP cases of 2009, in chronological order:

This newsletter is not legal advice. Views expressed herein should be checked for accuracy and current applicability.
Copyright 2010 Software Analysis & Forensic Engineering Corporation