Federal Circuit Affirms § 102(b) Invalidity; Source Code Commands Are Not Hearsay

In Definitive Holdings v. Powerteq, No. 2024-1761 (Fed. Cir. Apr. 14, 2026), the Federal Circuit affirmed summary judgment that the asserted claims were invalid under pre-AIA 35 U.S.C. § 102(b) and held that source code commands are not hearsay.

Definitive sued Powerteq, alleging infringement of U.S. Patent No. 8,458,689 directed to reprogramming engine controllers. Powerteq moved for summary judgment, arguing that a device embodying all claim limitations was on sale more than one year before the priority date. Powerteq relied on the device’s source code and expert testimony explaining how the code disclosed each limitation. Definitive challenged only the admissibility of the evidence, arguing that the source code was hearsay.

The district court rejected that argument, concluding that source code commands are not “statements” and thus fall outside the hearsay rule, and that any embedded comments are admissible under the business records exception to hearsay. Finding no genuine dispute of material fact, the court granted summary judgment.

The Federal Circuit affirmed, upholding the district court’s determination that source code commands are not hearsay because they are not offered to prove the truth of something they assert. Although comments or annotations within the code may constitute hearsay, the court did not reach the question of whether a hearsay exception would apply because only the code commands were necessary to the district court’s analysis. The Federal Circuit also rejected Definitive’s arguments that a third-party 30(b)(6) witness lacked sufficient personal knowledge to authenticate the source code, that Powerteq provided insufficient evidence of actual sales, or that the product embodying the source code did not qualify as prior art.