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Preserving the Crown Jewels: Practical Strategies for Protecting Source Code in Patent Litigation Discovery

By Douglas E. Lumish and Matthew M. Sarboraria

In today's Internet age, the most valuable asset belonging to many of the world's most successful organizations is “source code” ' the programming underlying all software operating systems, databases, and applications. As a result, keeping source code from leaking to the public is of paramount concern, especially in light of the fact that source code published over the Internet can proliferate at an exponential pace with little more than a series of mouse clicks. If confidential code is released into the public domain, even inadvertently, it risks losing any trade secret protection it once enjoyed. See, e.g., Linkco, Inc. v. Fujitsu Ltd., 230 F. Supp. 2d 492, 498-99 (S.D.N.Y. 2002). In short, once the “genie” is out of the bottle, it cannot be put back in.

To preserve the secrecy of their source code, many companies impose strict security policies on their own employees. As an example, code may be restricted to a small number of secure facilities, computers, and company employees who have a specific need for access. Even employees that do gain access may be prevented from viewing or downloading a full copy of the source code, but may be restricted instead only to necessary portions of the code. Furthermore, password protection, copy protection, and source control software are ubiquitous ' making unauthorized access difficult while keeping close track of who last “checked in” and “checked out” source code from a secure server.

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