Product Testing and Source code review are one of the most significant means of identifying potential infringement and developing litigation strategies when software/technology is hidden or not disclosed.

In addition, Product Testing can help establish whether a product contains all elements of a patented claim by performing more detailed analyses to identify areas of similarity between the tested product and the patented item, which also aids in determining if the product is infringing upon a patent. Because of this, Product Testing is an integral part of developing litigation strategy.

In addition to being the foundational element of any software application, Source Code provides specific details about the operation of the software application as well as a complete set of instructions for the software. Reviewing the Source Code allows a comprehensive understanding of how the software application is structured and also provides supporting evidence of infringement as part of the litigation strategy.

Importance

Product Testing & Source code review play important roles when it comes to determining or confirming patent infringement and hence shaping the patent litigation strategies. Product testing helps establish whether a product infringes on a patent, while source code review analyzes the software code of a particular software product/technology to assess similarity with the patented claim elements. Both of these activities provide evidences for confirming infringement, influencing the litigation cases and further proceedings.

Consequences of not conducting Product Testing & Source Code Review

• The patent holders might be unaware of the potential infringement products in the market that are using their patented invention without authorization.
• The potential infringement might be hidden in your competitors’ software products or other products requiring testing. 
• Patent owners might be missing out on damages if other market players are using their invention.
• You might be missing out on potential licensees that might be knowingly or unknowingly using your patented invention.
• Not going for product testing & source code review to confirm infringement might leave some gaps in the cases.
• Without all the proper and required infringement evidences, you might be losing in litigation cases.

Foundations of Product Testing & Source code review

Product testing and source code reviews are crucial to some patent infringement litigation. Many patents have claimed elements that require detection through product testing, reverse engineering or source code reviewing. Experts must systematically evaluate products to determine how they work or what their comprising elements are and how they behave.

The basic foundation of product testing and source code review is a combination of the patent and the product which concerns the patent. The patent itself grants an entity the exclusive right to exclude any entity from manufacturing the claimed invention, using or selling it, and for the specific geographies where the protection of the patent exists. The product may include any product that would infringe on the patent by being made and/or sold without proper authorization.

The product testing process is performed by running the product to evaluate how it functions and whether it provides the right user experience. Product testing adheres to a number of fundamental principles used to substantiate how well the product behaves or works.

Conversely, source code review is a line-by-line analysis of the software program's source code. Source code review is an internal deep analysis of the software's blueprint and is generally performed by experts in software coding.

Importance of Product Testing & Source code review

• Confirming Patent Infringement: Product Testing & Source code review play important roles when it comes to confirming patent infringement in some cases. Product testing helps establish whether a product infringes on a patent, while source code review analyzes the software code of a particular software product/technology to assess similarity with the patented claim elements.
• In Patent Litigation: This is the most critical scenario where product testing and source code review shine. In order to win a patent infringement case, the patent holder must prove that the accused product or process contains every element of at least one claim in their patent. Since, there are some patents that require testing of the accused product or maybe source code reviewing of the software underlying the product. Both of these activities provide evidences for confirming infringement, influencing the litigation cases.
• In Mergers & Acquisitions of IP assets: When buying, selling, or investing in a tech company, the IP portfolio is often a primary asset. In such scenario, product testing and source code reviewing of target company's products and software technology verify that the target company's products actually implement the technologies claimed in their patents. This validates the value of the IP.
• In Licensing Opportunities: Once confirming the infringement by other potential infringers using product testing or source code reviewing of their products, the patent holding entity can go for seeking licensing opportunities or can have damages negotiations with them depending on their requirements.

When and How to Perform Product Testing & Source code Review

Case Requirement: Since not all cases require Product Testing & Source code Review, there are certain kind of patents and products that actually require testing the product or reviewing its source code. In order to ascertain the infringement in some cases in which the claim element are written in such a way it may require the internal or backend working of the product/software technology. Only such cases require product testing & source code reviewing.

Steps to perform product testing & source code reviewing:

• Patent understanding: The very first step is to thoroughly understanding the subject patent, its claim scope and/or asserted claims by using problem-solution approach.
• Product Identification: The next step is conducting in-depth analysis of the infringing product, if available or else conducting an open search to identify potential target infringing product overlapping the claimed invention. Now depending on the case, either the product needs to be tested or source code reviewing is required.
• For Product Testing: Depending on the technology and the case, different types of product testing techniques can be deployed. It can be black-box testing that focuses on the inputs and outputs. Black-box testing aims to observe and examine the product’s functionality from the user’s perspective.  Other type of testing can reverse engineering which involves deconstructing and analyzing the product to understand its internal processes. Reverse engineering is critical especially in cases where the accused party hasn’t provided enough details on the functionality of their product. Last is the performance testing which focuses on the product’s functions and how it performs various tasks, including speed, scalability, and efficiency. This form of testing is useful in cases where the patented invention revolves around performance improvement.
• For source code review: The source code of the infringing product is extracted through publically available sources such as Product literature and/or developer forums such as Git-Hub, GitLab, Red Hat, Harness, Bitrise, AWS Cloud Formation etc., Company Developer Groups, Official Blogs etc. If required, the test environment and/or platform is set up that is required to run the sample or example projects available on sources such as Git-Hub, GitLab, Red Hat, Harness, Bitrise, AWS Cloud Formation etc., Company Developer Groups such as, Official Blogs etc.
• Finally, a thorough review of the extracted source code is conducted and relevant piece of code is identified which overlaps the asserted claims and/or the claimed invention.
• Documentation: Depending on the overlap of the accused product and the patent claims, a ranking to the case such as High, Medium or Low is provided. All the findings are documented and shared with client for further proceedings. For such cases, sometimes it is required to closely work with clients.

Sample source code review snapshots

Sample reverse engineering-virtualization snapshots

Tools & Resources for Product Testing & Source code Review

• Extracting Source codes: For source code review, the source codes are extracted through publically available sources such as Product literature and/or developer forums such as Git-Hub, GitLab, Red Hat, Harness, Bitrise, AWS CloudFormation etc., Company Developer Groups, Official Blogs etc.
• Testing Environment: For some cases, if required, the test environment and/or platform is set up that is required to run the sample or example projects available on sources such as Git-Hub, GitLab, Red Hat, Harness, Bitrise, AWS CloudFormation etc., Company Developer Groups such as, Official Blogs etc.
• Product Testing Professionals: For product testing, Effectual Services has experienced professionals and technology experts who have plenty of experiences in various product testing domain be it user interface testing, input/output testing or reverse engineering.
• Domain-wise Expertise: Effectual Services has extensive experience in working on multiple ICT technology such as Cloud computing, Artificial Intelligence, Software define networking, Network Security, Wi-Fi standard, 3GPP/ETSI Standards, Semiconductors, Autonomous Vehicles, V2X, Unified communication.
• Versatile team: Effectual Services has a pool of experts, with an average experience of 5-12 years, who are experienced to work on ICT domain. We have worked on multiple Source Code Review projects with corporate and law firms. We have supported them by preparing claim charts and strengthen the infringement support.

Handling Identified Cases

There might be some cases that are identified during an infringement analysis, which may require product testing or source code reviewing for decoding infringement or for collecting necessary evidences.

• In order to handle these cases, first step is to gain a comprehensive understanding of the accused product/technology. This involves reviewing publicly available information, marketing materials, user manuals, and any technical specifications.
• For handling product testing cases, the initial step is to define testing scope and methodology which involves identifying specific features to test. Next step is choosing appropriate testing methods like black-box testing for testing the product as an end-user, documenting observed functionalities and outputs. This can be done by purchasing the product, downloading the software, or observing its use. Another testing method can be reverse engineering, if the internal workings are not readily apparent, reverse engineering may be necessary, but this should be done carefully to avoid additional legal issues.
• For handling source code review cases, the initial step is to obtain the right version of the source code relevant to the accused product/technology. Version control systems (Git, SVN, etc.) are crucial here. After obtaining the right version, the next step is identifying key code sections based on the patent claims.
• After testing/source code reviewing and documenting the outcomes, analysis and reporting can be done which may include claim chart preparation if all the evidences are sorted for showing potential infringement. Further, a comprehensive report can be prepared outlining the testing methodology, findings, and expert opinions on infringement. These claim chart and report can serve as key pieces of evidence in further patent litigation.

Legal Significance

Product testing and source code review are technical exercises in patent litigation, they carry profound legal significance, having the ability to prove or defend against infringement claims, shape legal strategies, and determine the outcome of a case.

In Establishing Infringement or Non-Infringement: The greatest legal significance of product testing and source code review is their ability to serve as evidence of whether the defendant's product/software infringes on, or does not infringe on, the asserted patent claims. These forms of evidence are critical for establishing literal infringement i.e. that every element from the patent claims is found within the defendant's product/software, but may also be used to support arguments of infringement via the doctrine of equivalents, even when there is no direct evidence of the literal infringement.

In Shaping Legal Strategy and Arguments: The findings from testing and review majorly influence how patent claims are construed by the court. Technical experts provide the factual basis for interpreting claim terms in the context of the accused product. Further, these analyses form the backbone of a patent owner's infringement contentions, which are detailed legal documents outlining how each claim element is met by the accused product/software. Conversely, an accused infringer can use these analyses to craft non-infringement defences, showing that his product does not embody one or more claim elements.

In Facilitating Settlement and Litigation Management: The findings from testing and review provide both parties with a realistic assessment of the strengths and weaknesses of their respective positions. This clarity encourages more informed settlement negotiations, often leading to resolution without a full trial. Further, early and targeted product testing and source code review can help refine discovery requests, focusing on truly relevant information and reducing the overall cost and time of litigation.

Industry/Technology Specific Considerations

Product testing and source code review is majorly influenced by the specific industry or the underlying technology. While the fundamental principles remain same, the methodologies, tools, and expertise required can vary depending on the industry/technology involved.

• Software and AI/ML related: Source Code Review is typically the most significant and/ or important evaluative approach used for all types of software-based patents and/or AI/ML related patents. This is primarily due to the complexity of software. One software (e.g., a large program) may have several million lines of code that are written in a variety of different programming languages. As a result, the testing and evaluation of such software requires sophisticated analysis tools and the expertise of highly experienced software developers. For some patents, the test method is focused on the manner in which the data is prepared, augmented, or processed prior to being input into an AI model, through the analysis of data pipelines. For AI Related Product Testing, the product tester may need to input specific data into an AI model and review the response/output of the model to see how the model responds to the data. The purpose of this process is to identify what logic and information the AI model is using for its patent(s). However, a Source Code Review may still be necessary to verify that the patent(s) associated with this AI related patent accurately reflects the algorithmic logic that the model is using.
• Telecommunications (5G, IoT, Wireless) related: Product testing in the telecommunications industry involves ensuring compliance with industry standards. Telecommunications testing often involves the use of specialised testing equipment, as well as specific knowledge about specific communication protocols (e.g. 5G NR, LTE, Wi-Fi, etc.). Telecommunications testing typically examines how different parts of a telecommunications device interact, whether that interaction employs patented communication protocols and/or signal processing techniques. A large number of telecommunications patents are related to hardware and firmware used in telecommunications devices, and often this requires the hardware reverse-engineering (i.e. tear-downs, circuit analysis, and so on).
• Semiconductors related: Hardware reverse-engineering/tear-down of hardware is very important in this context as it involves taking apart an Integrated Circuit (IC), microprocessor or memory chip to determine its physical layout, non-gate level design and manufacturing methods. It is also common in the semiconductor industry to perform design layout analysis, such as comparing the circuit layout to the patent drawings and claims.

Real-World Case Studies

Case 1:

Once a client approached us with an infringement analysis project related to block chain technology. For some of the cases, there was a need to identify source code related to block chain technology of the accused products to ascertain infringement. Further, there was a need to identify a Block Chain Trusted Identity in which blockchain-based multifactor personal identity verification was performed. The project commenced with an examination of the various functionalities offered by Pingone-Neo and IBM Verify-creds. We located the relevant sample projects on GitHub and cloned the projects to our local systems by using the git command. Following the cloning process, we established the local environment by installing the requisite dependencies, ensuring the availability of all necessary packages. Subsequently, we configured the database, established credentials and secrets within the environment file, and initiated the project in development mode. Further, we identified several critical packages utilized by the software, including bcrypt for data encryption, Crypto (AES-256) for hash generation, nano for database operations, uuid for random ID generation, and axios for HTTP API interactions. Accordingly, the source code was located from the extracted packages and reviewed to determine the degree of overlap with the claimed invention. We were able to completely map and claim chart using the evidences of source code gathered during the investigation. After the completion of the project, a live walkthrough of each of the prepared chart was delivered to the client. The client was quite impresses by our output.

Case 2:

One of our clients once approached for an infringement analysis project in which we had to rank the patents in different categories depending on the case. There were several categories, one of the categories was to perform product testing for confirming infringement. During our analysis, we categorised the patents based on our findings. Some of the patents fell into the category related to product testing. We also highlighted the specific claim elements for every patent for which product testing was required. For these cases, we thoroughly analysed the accused products documentation to conclude whether there are good chances of these cases to turn into high cases if we go for product testing. In our further discussion with the client, we discuss these specific cases and worked closely with the client to perform product testing for these cases. During our product testing phase, we analysed the accused products in different scenarios like their user interface working, product teardown, internal components architecture, etc. As a result of our findings, we were able to convert a good number of cases into high infringement potential cases. After a thorough discussion with the client, we prepared claim chart for all the high cases and the charts to the client. The client appreciated us for our deep and thorough analysis and strong claim charts.

Common Misconceptions

• ‘Product testing is just about taking the product apart and seeing if it looks similar’: Although many people believe product testing is merely disassembling a product and seeing how closely it resembles another product, patent infringement doesn't just focus on how something looks but rather on whether every limitation of a patent claim, either functionally or structurally, exists in the allegedly infringing product. To determine the presence of each limitation of an asserted patent claim requires an in-depth analysis of the element(s) of that claim. Therefore, determining the existence of all limitations generally requires testing, expert interpretation, and case-by-case analysis.
• ‘If I change something by a small percentage, I can avoid infringement’: Patent infringement is determined based upon all patent claims, not based on arbitrary numerical changes to a product. As a result, simply making changes to an accused product in an arbitrary fashion will not relieve an accused infringer of liability. A product can be found to infringe a patent regardless of the percentage of each particular element of the product that has been changed because of the application of the "doctrine of equivalents."
• ‘Physical testing is always sufficient’: Physical testing is sometimes insufficient to show compliance with a patent's limitations. The need for physical product testing will vary based upon the specific facts of each case. For some patents, physical product testing may not be practical, and it may be necessary to utilize other forms of evidence (e.g., source code review) to establish compliance with patent limitations. In certain instances, even with physical testing, other mechanisms and/or algorithms that may have been developed and included in the accused product may not be visible or otherwise able to be determined. Accordingly, source code review may be necessary in order to determine compliance with a patent's limitations.
• ‘Open-source does not mean Free from Patent Infringement: This is a common misunderstanding of what open source means. Generally, open-source software licenses refer to Copyright and the distribution of the code itself, but they are not a licence for the use of any Patents that may be incorporated in the code or that may be required to use the software. It is entirely possible that a particular piece of open-source software could use a patented method or algorithm, and infringements may occur as a result.
• ‘If the Patent Doesn't Specifically State `Software' Then There is No Need to Review Source Code’: Another major misconception regarding the need for source code review. A Patent that is issued for a specific device can have additional claims that involve the use of the Patent and therefore must include software for successful operation. So, even though a Patent title might not specifically mention the use of software, source code will need to be reviewed to determine whether it will infringe the Patent.

Way Forward:

Product testing and source code review are critical tools in patent infringement analysis, providing the technical evidence necessary to confirm or defend against infringement claims. They not only support litigation strategies and claim construction but also inform settlement discussions, IP valuation, and licensing opportunities. By systematically analyzing products and software, these processes reveal overlaps with patented inventions, uncover hidden infringement, and strengthen the overall legal position. Effective testing and review require technical expertise, industry-specific knowledge, and careful documentation, making them indispensable for accurately assessing and enforcing patent rights.

How can Effectual help – our expertise domain wise in dealing Product testing & Source code review cases:

• We have extensive experience in working on multiple ICT technology such as Cloud computing, Artificial Intelligence, Software define networking, Network Security, Wi-Fi standard, 3GPP/ETSI Standards, Semiconductors, Autonomous Vehicles, V2X, Unified communication.
• We have 80+ technical experts in ICT, experts in network security, cloud computing, data center, IoT, Software, AV CODEC, unified communication, covering a wide range of technology domains,
• We have PHD scholars and engineers from top institutes and several industry veterans, researchers and patent agents.
• We have a pool of experts with an average experience of 5-12 years, who are experienced to work on various technical domains, and have a vast experience in various product testing and source code reviewing.
• We have worked on multiple source code review projects with corporates and law firms. We have supported them by preparing claim charts and strengthen the infringement support.
• Many of our team members have Law degrees along with the technical degrees which make our team members an ideal fit for Intellectual Property related services, be it infringement, litigation, or the like.

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