Federal Circuit Affirms Summary Judgment Of Non-Infringement Because Patentee Failed To Authenticate Third-Party Source Code

Wi-Lan Inc. v. Sharp Elecs.  Corp., No. 2020-1041, Wi-Lan Inc v. Vizio, Inc., No. 2020-1043 (Fed. Cir. Apr. 6, 2021)

In district court, the patentee produced source code printouts from third-party chip manufacturers with declarations from employees purporting to authenticate the code. The district court granted summary judgment of non-infringement because it found the source code to be inadmissible. The patentee appealed.

The Federal Circuit first addressed the business record exception under FRE 803(6). The Federal Circuit affirmed the declarations could not authenticate the code as a business record because patentee could not show that the declarants would be available for trial. The Federal Circuit also rejected the argument that these declarations were themselves business records because the declarations were obtained during litigation and not prepared in the course of a regularly conducted activity of the business. In response to an argument that the Third