The Federal Circuit’s recent decision in Definitive Holdings, LLC v. Powerteq LLC, Case No. 24-1761 (Fed. Cir. Apr. 14, 2026), provides another reminder that pre-AIA § 102(b) remains a powerful invalidity tool, particularly when older commercial products can be reconstructed through circumstantial evidence, archived software, and corporate testimony.
The case arose from technology relating to engine controller reprogramming. But the broader significance of the opinion extends well beyond automotive software. The Federal Circuit addressed several issues that frequently arise in modern patent litigation involving legacy systems and software evidence:
- whether Rule 30(b)(6) testimony can support summary judgment when the witness lacks firsthand involvement in the historical events;
- whether source code constitutes hearsay;
- how circumstantial evidence can satisfy the clear-and-convincing standard for invalidity; and
- whether a commercial product can trigger the on-sale bar even if the public never understood the product’s internal functionality.
The Federal Circuit answered each question in a manner favorable to accused infringers.
The Technology and the Prior Art Dispute
The asserted patent, U.S. Patent No. 8,458,689, concerned methods and apparatuses for upgrading software in an engine controller while preserving the original software image. The patent claimed priority to March 30, 2001, making March 30, 2000 the critical date for purposes of the pre-AIA on-sale bar.
Powerteq argued that a third-party product sold years earlier, the “Hypertech Power Programmer III” or “PP3,” embodied all asserted claim limitations and therefore invalidated the patent under pre-AIA § 102(b).
The evidentiary problem for Powerteq was predictable. The relevant products dated back to the 1990s. Engineers were gone. Documentation was incomplete. The company witness, Hypertech CEO Mr. Ramsey, had joined the company years after the relevant sales occurred. Nevertheless, Hypertech retained sales records, source code, revision histories, and even an unopened 1996 device package.
That was enough.
Rule 30(b)(6) Testimony and Historical Corporate Knowledge
One of the most interesting portions of the opinion involves the Federal Circuit’s treatment of Rule 30(b)(6) testimony.
Definitive argued that the district court improperly relied on testimony from Hypertech’s corporate representative because the witness lacked personal knowledge of the original 1990s sales and development activities.
The Federal Circuit largely sidestepped the broader doctrinal dispute over the relationship between Rule 30(b)(6) and Federal Rule of Evidence 602. Rather than deciding whether corporate representatives may testify beyond personal knowledge at summary judgment, the court concluded that Ramsey actually possessed sufficient personal knowledge regarding the company’s recordkeeping systems and the recovered materials.
The court emphasized several facts:
- Ramsey personally reviewed the historical sales records;
- he understood the server and archival systems where the records were maintained;
- he explained the company’s recordkeeping practices; and
- he personally examined the recovered 1996 PP3 device and compared version numbers to revision histories.
The opinion relied heavily on Tenth Circuit law recognizing that personal examination of records can provide sufficient personal knowledge for admissibility purposes.
Charles Gideon Korrell notes that this aspect of the opinion may become particularly important in software and electronics litigation involving “digital archaeology.” Modern patent disputes increasingly involve reconstructing decades-old systems from fragmented backups, archived repositories, and institutional records maintained long after original engineers have departed. The Federal Circuit appears comfortable allowing that reconstruction process to proceed through knowledgeable custodians rather than requiring firsthand witnesses to the original development work.
Source Code Is Not Hearsay
The opinion also contains a notable evidentiary discussion regarding source code.
Definitive argued that the PP3 source code was inadmissible hearsay. The Federal Circuit rejected that argument outright, concluding that executable source-code commands are not “statements” offered for their truth under Federal Rule of Evidence 801(c).
Instead, the court analogized source code instructions to verbal commands such as “dispose of a bag” or “burn a photo album.” Commands are neither true nor false. They are operational instructions rather than factual assertions.
The court distinguished its earlier decision in Wi-Lan Inc. v. Sharp Electronics Corp., explaining that Wi-Lan addressed authentication and trustworthiness concerns surrounding source-code printouts, not whether source code itself constitutes hearsay.
This portion of the opinion may have implications beyond patent law. Courts increasingly confront evidentiary disputes involving source code, scripts, AI models, configuration files, and machine instructions. The Federal Circuit’s reasoning treats executable code as functional conduct rather than testimonial assertion.
Charles Gideon Korrell believes this distinction could become increasingly important as litigants attempt to apply traditional hearsay doctrine to AI systems and software artifacts that do not fit neatly within conventional evidentiary categories.
Circumstantial Evidence and Clear-and-Convincing Proof
Definitive also argued that the evidence was insufficient to satisfy the clear-and-convincing evidence standard required for invalidity.
The Federal Circuit disagreed.
The court pointed to:
- historical sales records;
- installation guides recovered from a 1996 package;
- matching software version numbers;
- archived source code dated April 1996;
- testimony regarding implementation timelines; and
- physical examination of a preserved device.
Collectively, that evidence established that the accused prior-art device existed and embodied the claimed invention before the critical date.
Importantly, the court emphasized that circumstantial evidence is fully capable of satisfying the invalidity burden. Citing Ingenico Inc. v. IOENGINE, LLC, the court reiterated that circumstantial evidence is not “second-class” evidence in the public-use and on-sale-bar context.
That portion of the opinion should resonate with litigators handling older technologies where direct witnesses may no longer exist.
The Federal Circuit Rejects a “Public Disclosure” Limitation on the On-Sale Bar
The most significant substantive holding concerns the scope of the pre-AIA on-sale bar itself.
Definitive argued that the PP3 could not invalidate the patent because the public sale did not disclose the internal workings of the product or explain how the claimed method operated.
The Federal Circuit firmly rejected that theory.
Relying heavily on Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc., Pfaff v. Wells Electronics, and J.A. LaPorte, Inc. v. Norfolk Dredging Co., the court explained that the relevant inquiry is not whether the sale publicly disclosed every detail of the invention. The question is whether the sold product embodied the claimed invention.
The court distinguished cases involving secret manufacturing processes where only the resulting product was sold. In those situations, the claimed invention may remain undiscoverable from the marketed product itself.
But here, Hypertech sold the actual device that performed the claimed functionality. Consumers directly used the claimed engine-reprogramming methods through the PP3 device.
The Federal Circuit concluded that allowing the patent claims to survive would improperly withdraw from the public domain technology that had already been commercially available for years.
Charles Gideon Korrell observes that the opinion reinforces the Federal Circuit’s longstanding skepticism toward attempts to narrow the pre-AIA on-sale bar through “public disclosure” theories. Even where consumers cannot reverse engineer every technical detail of a device, commercialization itself may still place the invention beyond the reach of patent protection.
Practical Implications for Patent Litigation
The decision offers several practical lessons for litigants.
First, historical products remain dangerous prior art even when direct witnesses are unavailable. Archived databases, preserved hardware, software repositories, and institutional testimony may collectively suffice.
Second, accused infringers should aggressively investigate legacy systems and third-party commercial products, especially in software and electronics cases where products may have embodied patented functionality years before filing.
Third, patentees relying primarily on evidentiary exclusion strategies may face significant risk if they fail to directly dispute the underlying technical facts. The Federal Circuit repeatedly emphasized that Definitive chose not to contest whether the PP3 embodied the claim limitations and instead focused almost entirely on admissibility objections.
Finally, the opinion further confirms that pre-AIA § 102(b) remains expansive. Public disclosure of technical details is not required where the sold product itself embodies the claimed invention.
For companies developing software-enabled hardware products, the case also underscores the importance of maintaining historical archives. Old source code repositories, revision histories, and installation materials can become decisive invalidity evidence decades later.