Judge Andrews Grants Prosecution Bar and Rules on Source Code Issues Raised in Protective Order
January 5, 2016
Publication| Intellectual Property
Presented with a protective order dispute in Acceleration Bay LLC v. Activision Blizzard, Inc. et al., C.A. No. 15-228-RGA (D. Del. Dec. 1, 2015), regarding the scope of a post-grant prosecution bar and restrictions on source code review, Judge Andrews ruled in a short order that all of defendants’ proposals should be adopted. In so holding, Judge Andrews imposed a prosecution bar not only covering unissued patents (which plaintiff agreed to), but also covering inter partes review (“IPR”) and reexamination proceedings. Judge Andrews also extended source code protection to “engineering specifications, or schematics that define or otherwise describe in detail the algorithms or structure of software,” limited source code printing to 250 pages, declined to allow laptops in the source code room, declined to force defendants to install specific tools/software to view source code, declined to allow a party receiving privileged documents leave to retain one copy for the purpose of filing with the Court, and ordered that printed source code could be used at depositions but could not be retained by the court reporter or deponents.
Analysis: While source code is frequently ordered produced by the Court, restrictions will often be imposed on its review.