Proving independent software development: how experts defend against infringement claims

Learn how experts demonstrate independent software development to defend against infringement claims such as copyright or trade secret misappropriation.

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It’s not uncommon for different teams to create products that look or function similarly. But when a competitor alleges copyright infringement or trade secret misappropriation, the stakes rise quickly, and defendants need a clear, credible strategy to prove that their software was built independently, not copied.

At Eureka Software, we’ve been on the front lines of this challenge. As expert witnesses, we help defendants demonstrate that their software, while perhaps similar in function or appearance, was created through independent development, not unlawful copying. Our technical analysis and clear and compelling testimony can make the difference between a dismissed claim and a costly legal loss.

In this blog, we’ll explore how defendants can prove independent development, what evidence matters most, and how expert analysis strengthens the case.

The Legal Challenge: Similar Doesn’t Always Mean Stolen

Infringement claims often hinge on perceived similarities—whether in code, functionality, or user interface. But software, by its nature, often shares common patterns:

Standard algorithms and data structures

Industry conventions (e.g., search bars, login screens)

API calls and frameworks

Widely used design patterns

The key legal question is whether the accused software reproduces protectable elements of the plaintiff’s work, and whether any similarities arose through copying or independent creation.

What Does Independent Development Mean?

Independent development is when a product is created without access to or using a competitor’s proprietary information, trade secrets, or copyrighted code. It acknowledges that two parties can arrive at similar solutions through:

Common industry knowledge or best practices

Use of public standards or open-source components

Solving the same technical problem in a similar way

Proving independent development means showing that any similarities are coincidental, dictated by the problem at hand, or arise from public domain sources, not the result of unauthorized copying.

How Experts Demonstrate Independent Development

At Eureka Software, we provide detailed, evidence-based analysis that helps defendants build a strong case. Here’s how we do it:

1. Analyze Source Code Line by Line

Our first step is to compare the source code from both parties, looking for exact matches, structural similarities, and functional overlaps. We use proprietary tools to:

Highlight unique elements and standard coding practices

Identify whether similarities are limited to unprotectable elements, such as algorithms in the public domain

Document differences in how key features are implemented

If code structures and logic differ significantly, this supports an argument for independent development.

2. Trace Development Timelines

Version control systems like GitHub, Bitbucket, or internal repositories hold a wealth of evidence. We examine:

Commit histories, timestamps, and authorship data

Milestones in the product’s evolution

Project management logs or issue trackers

This information helps establish a clear development timeline, showing that the software was built before or independently of the alleged infringement.

For example, if a feature existed in the defendant’s product before they had access to the plaintiff’s code or team members, this strongly supports an independent development claim.

3. Assess Access (or Lack Thereof)

Access is a key element in infringement claims. We help establish:

Whether the defendant had any direct or indirect access to the plaintiff’s code

If former employees brought over proprietary knowledge or trade secrets

Whether public information (e.g., API documentation, published papers) was the source of similarities

When we can demonstrate no access to proprietary information, it becomes much harder for the plaintiff to prove copying.

4. Demonstrate Industry Standards and Common Practices

Many software features result from industry norms rather than theft. For example:

E-commerce carts function similarly across platforms.

User interfaces often reflect established design principles.

Our analysis identifies whether the disputed similarities are:

Common across multiple products in the industry

Based on open standards (e.g., SQL databases, REST APIs)

Driven by functional requirements rather than creative expression

This distinction is critical in defending against infringement claims.

5. Reconstruct the Development Process

Sometimes, we interview developers, review design documents, and examine internal communications to understand how the software was created. We look for:

Original design notes and specifications

Proof of brainstorming sessions or whiteboard sketches

Evidence of iterative development based on testing and feedback

This narrative shows that the product evolved independently, without relying on external proprietary information.

The Bottom Line: Evidence Wins Cases

Independent development defenses hinge on detailed, credible technical evidence. At Eureka Software, we specialize in providing:

Comprehensive source code analysis

Forensic review of version control systems

Documentation of industry practices and standards

Clear, objective reports and expert testimony that resonate in court

When a case depends on proving that your team built its software independently, not by copying, we’re the experts who can help you make that argument convincingly.

Protect Your Work—and Defend Your Rights With Eureka Software

Similarities in software products aren’t always signs of infringement. With careful analysis and a clear understanding of industry standards, defendants can show that they developed their software fairly, independently, and legally.

If you’re facing an infringement claim or need help establishing independent development, Eureka Software is here to help. Our team combines deep technical expertise with courtroom experience to provide the clarity and evidence you need.