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Expert Witness Insights by Area of Expertise
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Areas of Expertise :
Software, Patent, Intellectual Property, Software Engineering, Technology
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Software expert witnesses can play a critical role in patent litigation by analyzing source code, system architecture, data flows, prior art, and other technical evidence tied to infringement and validity disputes. Using the $121.95 million AlmondNet v. Amazon verdict as context, this article explains how technical experts support patent analysis, why clear communication matters, and how Rule 702 reliability requirements shape software expert testimony.
Software patent disputes can require judges and juries to understand technology that operates almost entirely behind the scenes. Depending on the claims, accused technology, and available discovery, technical analysis may draw from source code, data flows, algorithms, system architecture, engineering documents, and other evidence.
The patent dispute involving AlmondNet, Inc., Intent IQ, LLC, and Amazon provides a useful example. In June 2024, a federal jury in Waco, Texas, found infringement involving asserted claims from two AlmondNet patents related to targeted advertising technology and awarded $121.95 million in damages.
The litigation involved technical expert testimony addressing complex software and patent issues presented at trial. More broadly, the case provides useful context for the role technical expertise can play in technology litigation. Understanding complicated software is only part of an expert's assignment. Technical opinions also need to be grounded in the evidence, connected to the disputed issues, and explained clearly enough for the court or factfinder to evaluate them.
AlmondNet, Inc. and Intent IQ, LLC brought the district-court action against Amazon.com, Inc., Amazon.com Services LLC, and Amazon Web Services, Inc. in the U.S. District Court for the Western District of Texas. The June 2024 verdict arose from Civil Action No. 6:21-cv-00898-ADA before U.S. District Judge Alan D. Albright.
The litigation involved additional patents earlier in the case, but by the June 2024 jury trial, asserted claims from two patents were at issue:
After a week-long trial, the jury returned its verdict on June 14, 2024. The jury found infringement of the asserted claims submitted to it and found that Amazon had not proved those claims invalid. The jury awarded $121.95 million in damages.
The distinction between infringement and invalidity burdens is important. Under 35 U.S.C. § 282, an issued patent is presumed valid, and the burden of establishing invalidity rests on the party asserting it. In Microsoft Corp. v. i4i Ltd. Partnership, the U.S. Supreme Court held that an invalidity defense must be proved by clear and convincing evidence.
In September 2024, the district court entered final judgment that included the $121.95 million damages award and approximately $14.7 million in prejudgment interest, bringing the judgment to more than $136 million.
The case later reached the U.S. Court of Appeals for the Federal Circuit. The appeals ended without a Federal Circuit decision on the substantive infringement or invalidity issues. In a nonprecedential order dated April 6, 2026, the court dismissed the proceedings by agreement of the parties under Federal Rule of Appellate Procedure 42(b), with each side bearing its own costs.
Software Patent
Patent Infringement
Source Code Analysis
Patent Claim Mapping
Prior Art
Damages Calculations
Royalty Rates
Software patent disputes can require judges and juries to understand technology that operates almost entirely behind the scenes. Depending on the claims, accused technology, and available discovery, technical analysis may draw from source code, data flows, algorithms, system architecture, engineering documents, and other evidence.
The patent dispute involving AlmondNet, Inc., Intent IQ, LLC, and Amazon provides a useful example. In June 2024, a federal jury in Waco, Texas, found infringement involving asserted claims from two AlmondNet patents related to targeted advertising technology and awarded $121.95 million in damages.
The litigation involved technical expert testimony addressing complex software and patent issues presented at trial. More broadly, the case provides useful context for the role technical expertise can play in technology litigation. Understanding complicated software is only part of an expert's assignment. Technical opinions also need to be grounded in the evidence, connected to the disputed issues, and explained clearly enough for the court or factfinder to evaluate them.
AlmondNet, Inc. and Intent IQ, LLC brought the district-court action against Amazon.com, Inc., Amazon.com Services LLC, and Amazon Web Services, Inc. in the U.S. District Court for the Western District of Texas. The June 2024 verdict arose from Civil Action No. 6:21-cv-00898-ADA before U.S. District Judge Alan D. Albright.
The litigation involved additional patents earlier in the case, but by the June 2024 jury trial, asserted claims from two patents were at issue:
After a week-long trial, the jury returned its verdict on June 14, 2024. The jury found infringement of the asserted claims submitted to it and found that Amazon had not proved those claims invalid. The jury awarded $121.95 million in damages.
The distinction between infringement and invalidity burdens is important. Under 35 U.S.C. § 282, an issued patent is presumed valid, and the burden of establishing invalidity rests on the party asserting it. In Microsoft Corp. v. i4i Ltd. Partnership, the U.S. Supreme Court held that an invalidity defense must be proved by clear and convincing evidence.
In September 2024, the district court entered final judgment that included the $121.95 million damages award and approximately $14.7 million in prejudgment interest, bringing the judgment to more than $136 million.
The case later reached the U.S. Court of Appeals for the Federal Circuit. The appeals ended without a Federal Circuit decision on the substantive infringement or invalidity issues. In a nonprecedential order dated April 6, 2026, the court dismissed the proceedings by agreement of the parties under Federal Rule of Appellate Procedure 42(b), with each side bearing its own costs.
Software patent cases can involve technical questions that are difficult to resolve from product descriptions or user-facing features alone.
Depending on the case and available discovery, technical analysis can draw from materials such as:
Accused functionality may also span several components, such as services, databases, APIs, servers, devices, or cloud infrastructure.
A software expert may analyze accused functionality against the technical requirements of asserted claim limitations, using the court's claim constructions where applicable. Experts can explain the technical comparison and supporting evidence, while claim construction remains a matter for the court and the ultimate infringement determination remains for the court or factfinder under applicable law.
For example, two systems can appear similar to a user while relying on different code paths, data flows, or architectures. That is one reason technical analysis may need to examine implementation details rather than relying only on user-facing behavior.
Software experts can also address technical issues relevant to asserted invalidity defenses.
Some validity challenges, including anticipation and obviousness theories, can require detailed analysis of prior art. Depending on the asserted invalidity ground and governing statutory framework, an expert may analyze disclosures in patents and printed publications, technical evidence concerning products or systems alleged to qualify as prior art, and how a person of ordinary skill in the art would have understood the relevant technical information.
The timing of an obviousness inquiry depends on the statutory regime governing the patent. Under current 35 U.S.C. § 103, the inquiry considers whether the claimed invention would have been obvious before its effective filing date to a person having ordinary skill in the pertinent art. Pre-AIA law uses different timing language. The USPTO's Manual of Patent Examining Procedure recognizes this distinction.
Experts may address technical and factual issues relevant to the underlying obviousness determinations, including the scope and content of prior art, differences between the prior art and the claimed invention, and the level of ordinary skill in the art. Obviousness itself is ultimately a question of law based on underlying factual determinations.
The assignment depends on the patents, accused technology, asserted defenses, evidence, and procedural posture.
Claim limitations and accused functionality. An expert may compare technical aspects of the accused system with asserted claim limitations, using the court's claim constructions where applicable.
Source code. When relevant and available, source code may reveal functions, processes, data structures, logic, and interactions that bear on disputed technical issues.
System architecture and data flows. In some cases, understanding how information moves among components can help explain how accused functionality actually operates.
Prior art. When an invalidity challenge involves anticipation, obviousness, or another issue involving prior art, technical analysis may compare relevant disclosures or evidence with the asserted claims.
Person of ordinary skill in the art. Patent analysis may require consideration of the hypothetical person having ordinary skill in the relevant field. The USPTO identifies factors that can bear on the level of ordinary skill and explains that the relevant timing differs between AIA and pre-AIA law.
The precise opinions an expert may offer depend on the issues presented, applicable patent law, available evidence, and the court's rulings.
Technical knowledge alone does not guarantee effective expert testimony.
A software expert may understand a system at a sophisticated level but still need to explain that analysis to people who do not write software. The goal is not to remove important technical details. It is to make the reasoning understandable while preserving its accuracy.
Strong technical testimony should distinguish between what the underlying evidence establishes and what the expert infers from that evidence. Important conclusions should connect back to identifiable technical support.
Visual aids, simplified examples, and analogies can sometimes help explain a complex system, but they should clarify the underlying analysis rather than replace it.
For attorneys, communication is worth considering throughout the expert process rather than only when trial preparation begins.
Strong credentials do not automatically make an expert's opinions admissible in federal court.
Federal Rule of Evidence 702 governs the admissibility of expert testimony in federal proceedings. Under the current rule, the proponent must demonstrate to the court that it is more likely than not that the rule's admissibility requirements are satisfied.
Among other requirements, the expert's specialized knowledge must help the trier of fact understand the evidence or determine a fact in issue. The testimony must also be based on sufficient facts or data, be the product of reliable principles and methods, and reflect a reliable application of those principles and methods to the facts of the case.
For software testimony, that makes the connection between technical evidence and the resulting opinion particularly important.
The 2023 amendment did not create a new burden of proof. It clarified in Rule 702's text that the proponent must demonstrate to the court that the admissibility requirements are satisfied under the more-likely-than-not standard. The amendment also addressed decisions that had treated questions concerning the sufficiency of an expert's factual basis or the reliable application of methodology as matters of weight for the jury when those questions bear on Rule 702's admissibility requirements.
The AlmondNet litigation provides useful context for several practical considerations in software and technology disputes.
Start technical investigation early. Complex systems can take time to understand. Depending on the case, source-code access may also be governed by discovery or protective-order restrictions.
Connect technical analysis to the issues being litigated. An interesting technical explanation is not necessarily a legally relevant one. Analysis should remain connected to the claims, defenses, and opinions within the expert's assignment.
Develop understandable explanations alongside the analysis. Waiting until trial preparation to consider communication can make complex testimony harder to present clearly.
Keep the evidentiary foundation visible. Technical conclusions are more useful when the supporting source code, documentation, architecture evidence, testing, testimony, or other evidence can be identified.
Consider Rule 702 throughout the expert process. Qualifications, factual foundations, methods, reliable application, helpfulness, and the scope of opinions are better considered while the analysis is being developed than for the first time during an admissibility challenge.
AlmondNet v. Amazon illustrates the role technical expertise can play when litigation requires a factfinder to evaluate sophisticated software.
For attorneys handling software patent disputes, the practical consideration goes beyond finding an expert with impressive credentials. Effective expert work requires an understanding of the technology, sufficient supporting evidence, reliable methods applied reliably to that evidence, careful attention to the legal and technical issues within the assignment, and clear communication.
When those pieces come together, complex technical evidence can become information that a court or factfinder can meaningfully evaluate.
What does a software expert witness do in a patent infringement case?
A software expert may analyze source code, architecture, technical documents, and other evidence to address how an accused system operates and how its functionality relates to asserted patent claim limitations. The specific assignment depends on the issues in the case.
Can a software expert determine whether a patent was infringed?
An expert can provide technical opinions that assist in evaluating infringement, including comparisons between accused technology and claim limitations using the court's claim constructions where applicable. Claim construction remains a matter for the court, and the ultimate infringement determination is for the court or factfinder under applicable law.
Why can source-code analysis matter?
When relevant and available, source code can provide evidence about how particular functionality is implemented. It may supplement product documentation, system behavior, testimony, and other technical evidence.
What makes software expert testimony admissible in federal court?
Rule 702 requires, among other things, appropriate qualifications, helpful specialized knowledge, sufficient facts or data, reliable principles and methods, and reliable application. The proponent must demonstrate the rule's admissibility requirements to the court under the more-likely-than-not standard.
What happened after the $121.95 million Amazon verdict?
The district court entered a judgment exceeding $136 million after prejudgment interest. The case was appealed, but the Federal Circuit did not decide the substantive infringement or invalidity issues. In April 2026, the appeals were dismissed by agreement of the parties.
Software patent cases can involve technical questions that are difficult to resolve from product descriptions or user-facing features alone.
Depending on the case and available discovery, technical analysis can draw from materials such as:
Accused functionality may also span several components, such as services, databases, APIs, servers, devices, or cloud infrastructure.
A software expert may analyze accused functionality against the technical requirements of asserted claim limitations, using the court's claim constructions where applicable. Experts can explain the technical comparison and supporting evidence, while claim construction remains a matter for the court and the ultimate infringement determination remains for the court or factfinder under applicable law.
For example, two systems can appear similar to a user while relying on different code paths, data flows, or architectures. That is one reason technical analysis may need to examine implementation details rather than relying only on user-facing behavior.
Software experts can also address technical issues relevant to asserted invalidity defenses.
Some validity challenges, including anticipation and obviousness theories, can require detailed analysis of prior art. Depending on the asserted invalidity ground and governing statutory framework, an expert may analyze disclosures in patents and printed publications, technical evidence concerning products or systems alleged to qualify as prior art, and how a person of ordinary skill in the art would have understood the relevant technical information.
The timing of an obviousness inquiry depends on the statutory regime governing the patent. Under current 35 U.S.C. § 103, the inquiry considers whether the claimed invention would have been obvious before its effective filing date to a person having ordinary skill in the pertinent art. Pre-AIA law uses different timing language. The USPTO's Manual of Patent Examining Procedure recognizes this distinction.
Experts may address technical and factual issues relevant to the underlying obviousness determinations, including the scope and content of prior art, differences between the prior art and the claimed invention, and the level of ordinary skill in the art. Obviousness itself is ultimately a question of law based on underlying factual determinations.
The assignment depends on the patents, accused technology, asserted defenses, evidence, and procedural posture.
Claim limitations and accused functionality. An expert may compare technical aspects of the accused system with asserted claim limitations, using the court's claim constructions where applicable.
Source code. When relevant and available, source code may reveal functions, processes, data structures, logic, and interactions that bear on disputed technical issues.
System architecture and data flows. In some cases, understanding how information moves among components can help explain how accused functionality actually operates.
Prior art. When an invalidity challenge involves anticipation, obviousness, or another issue involving prior art, technical analysis may compare relevant disclosures or evidence with the asserted claims.
Person of ordinary skill in the art. Patent analysis may require consideration of the hypothetical person having ordinary skill in the relevant field. The USPTO identifies factors that can bear on the level of ordinary skill and explains that the relevant timing differs between AIA and pre-AIA law.
The precise opinions an expert may offer depend on the issues presented, applicable patent law, available evidence, and the court's rulings.
Technical knowledge alone does not guarantee effective expert testimony.
A software expert may understand a system at a sophisticated level but still need to explain that analysis to people who do not write software. The goal is not to remove important technical details. It is to make the reasoning understandable while preserving its accuracy.
Strong technical testimony should distinguish between what the underlying evidence establishes and what the expert infers from that evidence. Important conclusions should connect back to identifiable technical support.
Visual aids, simplified examples, and analogies can sometimes help explain a complex system, but they should clarify the underlying analysis rather than replace it.
For attorneys, communication is worth considering throughout the expert process rather than only when trial preparation begins.
Strong credentials do not automatically make an expert's opinions admissible in federal court.
Federal Rule of Evidence 702 governs the admissibility of expert testimony in federal proceedings. Under the current rule, the proponent must demonstrate to the court that it is more likely than not that the rule's admissibility requirements are satisfied.
Among other requirements, the expert's specialized knowledge must help the trier of fact understand the evidence or determine a fact in issue. The testimony must also be based on sufficient facts or data, be the product of reliable principles and methods, and reflect a reliable application of those principles and methods to the facts of the case.
For software testimony, that makes the connection between technical evidence and the resulting opinion particularly important.
The 2023 amendment did not create a new burden of proof. It clarified in Rule 702's text that the proponent must demonstrate to the court that the admissibility requirements are satisfied under the more-likely-than-not standard. The amendment also addressed decisions that had treated questions concerning the sufficiency of an expert's factual basis or the reliable application of methodology as matters of weight for the jury when those questions bear on Rule 702's admissibility requirements.
The AlmondNet litigation provides useful context for several practical considerations in software and technology disputes.
Start technical investigation early. Complex systems can take time to understand. Depending on the case, source-code access may also be governed by discovery or protective-order restrictions.
Connect technical analysis to the issues being litigated. An interesting technical explanation is not necessarily a legally relevant one. Analysis should remain connected to the claims, defenses, and opinions within the expert's assignment.
Develop understandable explanations alongside the analysis. Waiting until trial preparation to consider communication can make complex testimony harder to present clearly.
Keep the evidentiary foundation visible. Technical conclusions are more useful when the supporting source code, documentation, architecture evidence, testing, testimony, or other evidence can be identified.
Consider Rule 702 throughout the expert process. Qualifications, factual foundations, methods, reliable application, helpfulness, and the scope of opinions are better considered while the analysis is being developed than for the first time during an admissibility challenge.
AlmondNet v. Amazon illustrates the role technical expertise can play when litigation requires a factfinder to evaluate sophisticated software.
For attorneys handling software patent disputes, the practical consideration goes beyond finding an expert with impressive credentials. Effective expert work requires an understanding of the technology, sufficient supporting evidence, reliable methods applied reliably to that evidence, careful attention to the legal and technical issues within the assignment, and clear communication.
When those pieces come together, complex technical evidence can become information that a court or factfinder can meaningfully evaluate.
What does a software expert witness do in a patent infringement case?
A software expert may analyze source code, architecture, technical documents, and other evidence to address how an accused system operates and how its functionality relates to asserted patent claim limitations. The specific assignment depends on the issues in the case.
Can a software expert determine whether a patent was infringed?
An expert can provide technical opinions that assist in evaluating infringement, including comparisons between accused technology and claim limitations using the court's claim constructions where applicable. Claim construction remains a matter for the court, and the ultimate infringement determination is for the court or factfinder under applicable law.
Why can source-code analysis matter?
When relevant and available, source code can provide evidence about how particular functionality is implemented. It may supplement product documentation, system behavior, testimony, and other technical evidence.
What makes software expert testimony admissible in federal court?
Rule 702 requires, among other things, appropriate qualifications, helpful specialized knowledge, sufficient facts or data, reliable principles and methods, and reliable application. The proponent must demonstrate the rule's admissibility requirements to the court under the more-likely-than-not standard.
What happened after the $121.95 million Amazon verdict?
The district court entered a judgment exceeding $136 million after prejudgment interest. The case was appealed, but the Federal Circuit did not decide the substantive infringement or invalidity issues. In April 2026, the appeals were dismissed by agreement of the parties.
Software Patent
Patent Infringement
Source Code Analysis
Patent Claim Mapping
Prior Art
Damages Calculations
Royalty Rates
Expert Witness Insights by Area of Expertise
Expert Witness Insights by Area of Expertise