OANDA and GAIN Capital have agreed on rigid restrictions regarding access to source code, as the patent infringement lawsuit brought by OANDA continues at the New Jersey District Court.
Let’s recall that, in this lawsuit, OANDA alleges that GAIN infringes two of its patents, U.S. Patents No. 7,146,336 (the ʼ336 Patent) and 8,392,311 (the ʼ311 Patent). These patents claim systems and methods for online currency trading that improve upon prior art online currency trading.
On August 24, 2021, the brokers filed a Stipulated Confidentiality Order with the Court. The document, seen by FX News Group, concerns, inter alia, protecting access to source code materials.
“Source Code” includes but is not limited to any human-readable programming language or format that defines software, firmware or integrated circuits.
The order states that any Source Code produced in discovery will be made available for inspection at the offices of the Producing Party’s Outside Counsel, or any other location mutually agreed to by the Parties, between the hours of 9:00 a.m. and 6:00 p.m. on business days (i.e., weekdays that are not Federal holidays) and at other mutually agreeable times.
Prior to the first inspection of any requested Source Code, the Receiving Party shall provide at least 14 days’ written notice of the Source Code that it wishes to inspect and shall meet and confer with the Producing Party in good faith to determine a date for the first inspection.
The Receiving Party shall provide three business days’ notice prior to any additional inspections of that code. A list of names of persons who will inspect the Source Code shall be provided to the Producing Party at the time of request for access.
As one might expect, the brokers agree that, absent express written consent by the Producing Party, the Receiving Party may not create electronic images or copies, or other images, of the Source Code from any paper copy of Source Code for use in any manner.
The Source Code will be made available for inspection on a secured computer in a secured room without Internet access or network access to other computers, and on which all access ports have been disabled (except, if needed, a port for a keyboard and a mouse), as necessary and appropriate to prevent and protect against any unauthorized copying, transmission, removal or other transfer of any Source Code outside or away from the computer on which the Source Code is provided for inspection.
Only one Source Code Computer will be made available for inspection in the Source Code Review Room. The Receiving Party may request a second Source Code Computer at least seven days in advance of the date upon which the Receiving Party wishes to have the additional Source Code Computer available for use in the Source Code Review Room.
The Receiving Party’s Outside Counsel and/or experts/consultants may request that commercially available software tools for viewing and searching Source Code be installed on the Source Code Computer, provided, however, that (a) the Receiving Party possesses an appropriate license to such software tools; and (b) such other software tools are reasonably necessary for the Receiving Party to perform its review of the Source Code necessary for the Receiving Party to perform its review of the Source Code consistent with all of the protections herein.
No recordable media or recordable devices, including without limitation sound recorders, computers, cell phones, peripheral equipment, cameras, CDs, DVDs, or drives of any kind, shall be permitted into the Source Code Review Room.
The brokers request that the Court execute the order.