Evidentiary Obstacles for Third-Party Source Code in ‘Wi-LAN v. Sharp Electronics’

June 28, 2021 – When relying on third-party evidence like source code, evidentiary rules for authentication and hearsay present significant hurdles when a third-party witness does not attend trial. In Wi-LAN v. Sharp Electronics (Fed. Cir., Apr. 6, 2021), the U.S. Court of Appeals for the Federal Circuit affirmed the exclusion of such evidence and the resultant finding of non-infringement.

In May 2015, Wi-LAN sued Sharp and Vizio in the District of Delaware and accused their television sets of infringing a patent relating to the display of interlaced video on non-interlaced monitors. Case No. 1:15-cv-00379. The accused functionality was found within chips manufactured by third parties. Accordingly, Wi-LAN needed the source code from the third-party chipmakers to establish infringement.