By Andrew Schulman
Andrew Schulman (andrews@SoftwareLitigationConsulting.com) is an attorney in San Francisco. A former computer programmer and author of books and articles on the internal operation of Microsoft's operating systems, he has since the early 1990s consulted on technical aspects of litigation involving software patents, copyright, trade secrets, antitrust, and privacy. He is an LL.M. candidate in the intellectual property program at Golden Gate University. His firm's web site is http://www.softwarelitigationconsulting.com.
Imagine a building site where some event has occurred, and imagine some litigation about the event. Both sides are staring at the blueprints, but oddly, no one has visited the building site. Of course, blueprints present a lot of information not apparent from a building or jobsite. But since "as built" construction diverges considerably from original blueprints, and more fundamentally since a building and its blueprints are two different things, it's hard to imagine construction litigation without investigating the actual jobsite.
Much software litigation can be analogized to a construction dispute where only the blueprints are consulted, without looking at the building.
In patent infringement cases involving computer software, ...