In a recent Order, ALJ McNamara clarified that while diagrams drawn by an expert depicting the interplay and hierarchy of relevant code modules, inputs, and outputs of source code are to be treated as confidential business information under the protective order, such diagrams are not considered source code under the ALJ’s Source Code Addendum.

Summary

In Order No. 38 (337-TA-1044), ALJ McNamara denied non-party ARM, Inc’s motion seeking an order to protect its source code from alleged violations of the protective order (PO).  ARM contended the dissemination of electronic copies of certain diagrams drawn by an expert violated the terms of the Source Code Addendum in this case.  The Source Code addendum was entered by the ALJ pursuant to a joint motion by the parties and affords documents and information designated as Source Code substantially higher protections than confidential business information (CBI).  While ALJ McNamara agreed that the diagrams were CBI under the PO, she concluded that they were not subject to the heightened protection afforded by the Source Code Addendum.

While reviewing ARM’s Source Code, Complainant’s expert created handwritten diagrams depicting the interplay and hierarchy of relevant code modules, inputs, and outputs of the Source Code.  After completing his review, the expert transcribed these handwritten diagrams into electronic form.  These diagrams were used during depositions and ultimately included as part of Complainant’s infringement contentions.

According to ALJ McNamara, the diagrams were not considered source code because they did not fall under the definition of “source code” as defined by the Source Code Addendum:

source code, object code (i.e., computer instructions and data definitions expressed in a form suitable for input to an assembler, compiler, or other translator), any text written in any high-level programming language defining firmware and/or software functionalities implemented on an integrated circuit, microcode, register transfer language (“RTL”), firmware, and hardware description language (“HDL”), as well as any and all notes, annotations, and other comments of any type related thereto and accompanying the code. For avoidance of doubt, this includes source files, make files, intermediate output files, executable files, header files, resource files, library files, module definition files, map files, object files, linker files, browse info files, and debug files.

As highlighted in the Order, the Source Code Addendum permitted the expert to take notes.  Furthermore, the expert’s diagrams merely represented a high-level four-page summary of the expert’s understanding of the Source Code based on his review of thousands of files on the source code computer and hard copy print outs of certain of these files spanning thousands of pages.  As a result, ALJ McNamara concluded that Complainant had not violated the PO or the Source Code Addendum.

Takeaway

Parties to investigations where source code is at issue routinely seek higher protections for the source code than is available in the standard ITC administrative protective order.  Parties (and non-parties that have produced source code) should be mindful, however, that while these source code addendums usually provide significant protection for the code itself, there are limits to that protection.  Here, the ALJ held that diagrams created from review of source code that show how the code functions would not be afforded elevated protections.  Litigants at the ITC should consider these limitations when negotiating a source code addendum and should incorporate any requirements of the protective order into their litigation strategy early in the investigation.

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