1. You sue.
2. You go through discovery, comb every line of code of the person you are accusing, until you find what you are looking for
It's really that simple. All it costs is money (for both sides unfortunately).
2. You go through discovery, comb every line of code of the person you are accusing, until you find what you are looking for
It's really that simple. All it costs is money (for both sides unfortunately).
No judge would allow that during discovery.
see: http://www.nolopress.com/definition.cfm/Term/7E770269-7AEF-4...
http://ralphlosey.wordpress.com/2007/02/25/forensic-fishing-...
Plaintiffs have the right to get "discovery" to prove their claims because the defendant is usually the only person/company with evidence of the defendant's wrongful acts.
A fishing expedition is where the plaintiff cannot articulate any particular type of evidence sought, or how such evidence would be useful/necessary to its case, or how such evidence would result in evidence it could actually use.
Example: P sues D for patent infringement, demands in discovery D's head researcher's notes. Not fishing. Example 2: Same, except that P demands the CEO's call logs. Fishing, b/c not reasonably related to the patent infringement claim. Example 3: Same as Ex 2, except that P alleges that the CEO knew about the patent b/c he spoke with a former employee of P before launching D's infringing product. NOT fishing, b/c now it's shown to be relevant.
How to tell the difference: If you can't articulate something relevant to your claims that the discovery could reveal, it's a fishing expedition.
Knowing about a patent (because it has been published) is not enough.
Google could sue every other search engine right this second for infringement of pagerank and the judge would (upon a motion by the defendants lawyers) toss them right out without any kind of substantiation.
A declaration of a disgruntled employee, leaked source, a statement by a prominent member of the board of the competitor, all those would be grounds to let the trial proceed, but nothing would get you tossed out.
The operative word in your argument is 'complete'.
You will not get to read your opponents code on a hunch.
No point in quoting what the law says, that's all theory. In practice, it happens.
Google could sue all the search engines out there. But there is no business reason for them to. But if it ever became critically important to them to kill a given competitor, patent infringment of the fishing kind would be high on their list of options.
I am not a lawyer but I play one on the Founder Institute :-)
Now excuse me while I go sue the pants of some competitors in the hope of finding some infringement during discovery ;)
Have you ever conducted discovery before, let alone patent-litigation discovery? Discovery is about your suspicions. If you already had facts, you would not need discovery.
Judges are very lenient about discovery requests; the bar is very low -- reasonable suspicion is enough. BTW, you aren't actually required to justify your discovery requests unless the opposing party challenges them, and even then, it's their burden to show that your discovery request is unreasonable and irrelevant.
Code would be a request for production of documents (which actually refers to any physical evidence). Patents are exclusively federal jurisdiction, so the FRCP applies. In federal court, discovery is granted for anything that could lead to relevant evidence
All of the examples you mentioned are enough to get discovery, which occurs before trial. I've seen discovery granted based upon the affidavit of an employee who was fired for cause for stealing from the defendant company. I've seen discovery granted based on a *news article about a company.