As we must have discussed in one of the prior 238,000,000 entries (estimated) on this blog, the Default Standard for Discovery requires an accused infringer to produce it's "core technical documents" early in the case (60 days after the scheduling conference), to allow the patentee to prepare its infringement contentions. This leads to the question of what exactly constitutes a "core technical document?" and, in particular, is source code a "core technical document"?
This question has gone largely unaddressed in the years since the Default Standard was adopted [editor's note: with at least one exception back in 2012]. This week, however, Judge Stark gave us a parting gift of a bit of clarity, holding that neither the Default Standard, nor his form scheduling order, "require the production of source code as part of the core technical document production provided before initial infringement contentions." St. Clair Intellectual Property Consultants Inc. v. Samsung Elecs. Co. Ltd., C.A. No. 12-69-LPS, D.I. 113 (D. Del Feb. 14, 2022).
This is not to say that there aren't sound tactical reasons to produce source code early in the case, but should you choose to withhold it, you now have some authority to cite.
If you enjoyed this post, consider subscribing to receive free e-mail updates about new posts.
