computers-and-softwareThe Information Age has arrived, and with it a slew of litigation relating to intellectual property (IP). One major area of litigation in recent years has arisen in the area of computer software, which is covered by both patent and copyright laws. Like many areas of IP, legal issues relating to computer software are technical and complex. Juries struggle to understand even the most basic principles that form the foundation of a computer program, and most judges similarly struggle to understand what is necessary to reach a decision.


Of course, judges and juries alike need to be educated in the courtroom so that they can grapple with the complex and novel legal issues they will face at the conclusion of a trial. That’s where expert witnesses come in. Experts perform critical functions in IP, and particularly in software cases, by taking a technical issue and explaining it in layman’s terms. For example, a jury might struggle with the idea of an “application programming interface” or API as an abstraction specifying how one software program can request services from another software program. Yet an expert witness can simplify technical jargon with confidence, and testify before both judge and jury that any API is just a way for two pieces of software to communicate.

Of course, computer software expert witnesses do more than simply provide definitions; they form critical components of an argument. For example, experts in such cases can speak to the customs in a particular industry, and to whether the use of a particular API is an “accepted practice” among developers, which in turn can militate in favor of a legal determination as to the conceptual separability of the idea behind the software from its actual expression for copyright purposes. In the patent world, experts can opine on software in ways that will allow a jury to conclude whether an invention is nonobvious or novel.

Whether a computer software case involves copyright issues, patent issues, trade secret issues, or a combination thereof, the function an expert witness serves in computer software litigation can be absolutely crucial to bringing a successful civil case.

By Sam Eichner, J.D.