Cracking The Code: How Do Courts Decide Where Internationally Stored Source Code Should Be Reviewed?

As software continues to advance and permeate the patent space, source code review has become an increasingly necessary part of patent litigation. Yet, source code is frequently subject to protective orders as it is often considered highly valuable, sometimes even the "crown jewel" of a company's assets. So, experts involved in source code review often must travel to designated locations—frequently counsel's office—to review the source code in a secure environment.

This combination of restrictions generally requires Courts to employ a balancing act when crafting such protective orders, to assure both relatively convenient access by both parties and security of the source code. Meanwhile, however, many companies involved in these suits operate internationally. So, source code invoked in these conflicts may be housed in different countries across the world. And, this source code may never have been brought to the United States.