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Tip: Overly-complex code also increases the cost of source code reviews – as both side’s experts will need to spend more time examining the code to understand it fully. In such a scenario, the defendant's engineering team may appear to be sloppy or incompetent to the jury. Code that is hard to read and maintain is also more likely to contain bugs. Source code that is hard to read is harder to maintain.

This scenario can occur when the reviewed source code is overly-complex and riddled with commented out code and/or preprocessing directives. In cases such as a product liability suit involving injury or death, a software expert examining the source code may use poor code quality as a basis of their opinion. Scenario 2: Dead code leads to overly-complex and vulnerable code. It is also possible that the judge or jury won’t be convinced by a dead code defense. However, it is possible that neither side’s software expert(s) will notice it is dead. Tip: It is left to the legal teams to determine if dead code does legally infringe. If one of the identified parts is implemented in dead code that becomes part of the binary, the product may still infringe an asserted claim of the patent–even if it is never invoked. When a patent infringement suit is brought against an electronics or software company, one or more versions of the involved product's relevant source code must be produced to the plaintiff's legal team.īoth the patent owner’s and the plaintiff's expert(s) will examine the source code(s) to identify portions of the code that implement each part of the algorithm. Scenario 1: Dead code implements part (or all) of the algorithm. The presence of dead code can have unintended legal consequences and several scenarios have been observed in which dead code heightened the probability of a loss in court. The Legal Consequences of Dead Codeĭead code has been frequently encountered when conducting source code reviews for litigation.

In either case, dead code is a vestige or unnecessary part of the product. Another form of dead code is present in the binary but cannot be or is never invoked. That dead code has no corresponding form in the binary.

First, there is dead code that is commented out or removed via #ifdef’s. Dead code is source code that is not executed in the final system.

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