1. Mark Zuckerberg used Leader white paper to build Facebook

Opinion: One blogger's perspective.

On July 26, 2011, Leader Technologies filed its Opening Brief in the Federal Circuit Court of Appeals in the Leader Technologies Inc. v. Facebook Inc., 08-CV-862-JJF/LPS (D. Del. 2008) patent infringement fight.[1] See Leader Press Release, Jul. 26, 2011.

Initially Leader and inventor Michael McKibben were the subject of much sarcasm in the blogosphere. Numerous bloggers labelled them "patent trolls" and "squatters." Techdirt, Sep. 9th 2009 dismissed Leader's claims as a "publicity stunt" and VentureBeat, Nov. 19, 2008 said the claims were "impressively weak." See also AllFacebook.com, Nov. 19, 2008.

Verdict: Facebook "literally infringes" Leader's patent

To the contrary, Leader claims resulted in a jury decision that Facebook literally infringes 11 of 11 Leader patent claims and that no published prior art exists. This part of the trial was a level playing field and was well-tested. Leader Opening Brief, Jul., 25, 2011, p. 3; also available at Leader. As Leader's appeal brief describes, the element of the verdict that Facebook "won" regarding alleged early commercial activity appears to have been the result of jury confusion surrounding Facebook's "court room theater" and personal attacks of Mr. McKibben's credibility in lieu of hard evidence. This part of the trial was not a level playing field and was the subject of considerable Facebook attorney "dark arts" tactics which Leader is seeking to have set aside by the Federal Circuit. See Facebook's trial conduct; See also Facebook's "I'm tired" tactic; Expert witness practices "dark arts;" No evidence. No problem. Fabricate it.; Missing Documents; Patent Office records disprove Facebook; Facebook's "court room theater."

As the facts emerge, the patchwork of Facebook origin stories is finally starting to address the previously unanswered elephant-in-the-room question: How can a complete platform be conceived, researched, designed, written, edited, debugged and staged in under two weeks, by one person, while taking a full class load and studying for finals?

It now appears that: (1) as asserted by Leader, Mark Zuckerberg hacked his platform technology ideas from Leader Technologies' white papers (he testified that he did not remember the "other" sources for Facebook, but that he never saw the Leader white papers), and garnered the "faces" ideas from three sources: (2) the Winklevoss twins (ConnectU), (3) Aaron Greespan (houseSYSTEM) and (4) even the Harvard administration. Mr. Zuckerberg only vaguely admits to "other" sources while adamently denying each and every specific source put forward. This should be no surprise since Mr. Zuckerberg boasted to Wired magazine that "one good hacker can be as good as 10 or 20 engineers" (cited below) and recently hired hacker George Hotz who broke into Sony PlayStation servers; an incident that cost the company $25 million.[4] See Wired, Apr. 19, 2010; Hollywood Reporter, Jun. 28, 2011.

Another set of facts is that the Leader patent application published on June 24, 2004 and Mark Zuckerberg testified in the ConnectU case that he hired Steven Dawson Haggerty to build the "groups functionality" during that same time in the summer of 2004. The Leader patent application specifically describes Leader's groups context innovations (references below). According to The Harvard Crimson, this groups feature is what accelerated Facebook's popularity from a singular student profile to an interactive system. "New Facebook Groups Abound," The Harvard Crimson, Dec. 3, 2004.

Much of the new information referenced here is sourced from the U.S. District Court's PACER website.[6] Click the link here for instructions on sign up and access: The case caption is Leader Technologies Inc. v. Facebook Inc., 08-CV-862-JJF/LPS (D. Del. 2008). See How to Access PACER.

The court documents reveal how Mark Zuckerberg was able to accelerate from 0-to-60 mph in "one or two weeks" while studying for his Harvard finals to start Facebook on February 4, 2004. The idea for the student facebook was already known at Harvard from three well-documented sources prior to Mr. Zuckerberg: (1) the Winklevoss twins' ConnectU,[1] (2) Aaron Greenspan's houseSYSTEM,[2] and (3) from the Harvard computer administration.[3] And, if Leader Technologies ("Leader") is right, Mr. Zuckerberg lifted the ideas for the structure of the platform from Leader Technologies' patent pending white papers, one published on October 22, 2003, along with Leader's first patent publication on June 24, 2004—exactly when Mr. Zuckerberg says "Steven Dawson Haggerty" was hired to build the "groups functionality" which is disclosed in the Leader patent publication.[4][5][6][7]

[1] Nicholas Carlson. "At Last -- The Full Story Of How Facebook Was Founded." Business Insider, Mar. 5, 2010. Accessed Jul. 15, 2011.

[2] Aaron Greenspan. "Aaron's Answers about houseSYSTEM." Quora, Oct. 4, 2010. Accessed Jul. 16, 2011.

[3] David M. Kaden. "College Inches Toward Campus-Wide Facebook." The Harvard Crimson, Dec. 9, 2003. Accessed Jul. 16, 2011.
[4] Mark Zuckerberg Deposition. The Facebook vs. ConnectU, April 25, 2006. Accessed Aug. 1, 2011.

[5] Leader Technologies, Inc.'s Counter-Statement of Disputed Facts, Leader Technologies, Inc., v. Facebook, Inc., 08-cv-861-JJF, Jun. 11, 2010. Accessed Aug. 2, 2011.

[6] Michael McKibben. "White Paper: Leader2Leader® — What convergence was meant to be." Leader Technologies®/archive.org, Oct. 22, 2003; Leader v. Facebook, Doc. No. 477, Ex. 28. Accessed Aug. 2, 2011.

[7] Katherine M. Gray. "New Facebook Groups Abound." The Harvard Crimson, Dec. 3, 2004. Accessed Aug. 3, 2011.

• Leader inventor Michael McKibben’s son Max lived in Winthrop House, the dormitory next to Mark Zuckerberg's Kirkland House where Mr. Zuckerberg's now infamous hacking, depicted in The Social Network movie, was carried out. See Mark Zuckerberg Oct. 28, 2003 Online Hacking Diary; See The Social Network Hacking Scene, YouTube; See also Harvard campus map showing the proximity of Winthrop House and Kirkland House .
  
• Four (4) emails between Leader inventor Michael McKibben and his Harvard son Max dated between April 21, 2003 and January 13, 2004 are identified in the joint evidence list. These dates predate the founding of Facebook on February 4, 2004. See Proposed Joint Evidence List, May 27, 2010, PTX 776-779, p. 17. The contents of these emails are not known at the present time since this "willfulness" evidence has not yet entered the case.
  
• Mark Zuckerberg hacked into the Harvard student house site servers and email accounts multiple times. See Mark Zuckerberg Oct. 28, 2003 Online Hacking Diary; Nicholas Carlson. "In 2004, Mark Zuckerberg Broke Into A Facebook User's Private Email," Business Insider, Mar. 5, 2010.
• Mark Zuckerberg stated that “one good hacker can be as good as 10 or 20 engineers.” Wired, Apr. 19, 2010.
  
• Leader invested 145,000 man-hours and over $10 million to develop the initial concept and build a working embodiment of the technology. Leader Opening Brief, Jul. 25, 2011, p. 6; also available at Leader.
  
• Mark Zuckerberg testified to have built the first version of Facebook in “one or two weeks” while studying for finals in January 2004. Mark Zuckerberg ConnectU Deposition, Apr. 25, 2006, Tr. 41:3-42:1; Tr. 42:17-20; Tr. 82:3-7.
  
• Mark Zuckerberg stated in ConnectU testimony that he could not remember his “other” sources for his ideas for Facebook, and testified in Leader v. Facebook that Leader’s white papers were not among those “other” sources. Mark Zuckerberg ConnectU Deposition, Apr. 25, 2006, Tr. 36:17-22.
  
• Leader published a white paper on its invention on October 22, 2003. Mark Zuckerberg hacked the Harvard House sites on October 28, 2003, six days later. Leader White Paper, Oct. 22, 2003, Archive.org, cited in Leader v. Facebook, Doc. No. 477, Ex. 28, Oct. 22, 2003.
• From Oct. 23, 2003 to Sep. 15, 2004 The Harvard Crimson carried 22 news articles about sophomore Mark Zuckerberg. Only Bill Clinton and George Bush received more mentions. Al Franken received 16, Google 14, Microsoft 10, Bill Gates and Pope John Paul II 3 each. By comparison, the two other facebooks at Harvard, namely the Winklevoss Twins' ConnectU and Aaron Greenspan's houseSYSTEM, received 4 mentions each. What follows are links to the 22 articles.

1. Oct. 23, 2003, S.F. Brickman, Not-so-artificial Intelligence
2. Nov. 04, 2003, Bari M. Schwartz, Hot or Not? Website Briefly Judges Looks
3. Nov. 06, 2003, S.F. Brickman, Face Off - New web venture not so hot
4. Nov. 19, 2003. Katharine A. Kaplan, Facemash Creator Survives Ad Board
5. Dec. 09, 2003, David M. Kaden, College Inches Toward Campus-Wide Facebook
6. Dec. 11, 2003, The Crimson Staff, Put on a Happy Face
7. Feb. 09, 2004, Alan J. Tabak, Hundreds Register for New Facebook Website
8. Feb. 17, 2004, Amelia E. Lester, Show Your Best Face
9. Feb. 18, 2004, Alan J. Tabak, Harvard Bonds on Facebook Website
10. Mar. 01, 2004, Adam P. Schneider, Facebook Expands Beyond Harvard
11. Mar. 09, 2004, Leon Neyfakh, Columbia Rebukes thefacebook.com
12. Mar. 11, 2004, The Crimson Staff, Manifest Destiny, Facebook Style
13. Mar. 15, 2004, Matthew A. Gline, CrimsonPartiesHookupExchange.com
14. Mar. 18, 2004, Sarah E.F. Milov, Sociology of thefacebook.com
15. Mar. 19, 2004, Anastasios G. Skalkos, New Online Facebook Launched
16. May 07, 2004, M. Grynbaum, Online Facebook Solicits New Ads
17. May 28, 2004, T.J. Mcginn, “Online Facebooks Duel Over Tangled Web of Authorship
18. Jun. 10, 2004, Elena Sorokin, Internet Boosts Social Scene
19. Jun. 10, 2004, M. Grynbaum, Zuckerberg ’06: The whiz behind thefacebook.com
20. Aug. 13, 2004, Alan J. Tabak, Zuckerberg Programs New Website
21. Sep. 13, 2004, T.J. Mcginn, Lawsuit Threatens To Close Facebook 
22. Sep. 15, 2004, The Crimson Staff, Facing Off Over The Facebook

• Leader's patent first published on June 24, 2004. Mark Zuckerberg testified in ConnectU that the "groups functionality" was programmed into Facebook during the summer of 2004 by "Steven Dawson Haggerty." The Harvard Crimson says Facebook became much more popular with users of the "Groups" were introduced. Mark Zuckerberg ConnectU Deposition, Apr. 25, 2006, Tr. 90:11-91:18.
• Also "by the end of the summer" (NOTE: this is  at the same time as the Leader patent "groups" disclosure), Peter Thiel invested $500,000 in Facebook according to an Accel press release.
• Accel Partners' CEO James Breyer invested $12.7 million in April 2005 and became a Facebook board member while also serving on the Board of the Associates of the Harvard Business School, and serving as the former chairman of the Harvard Business School California Research Center. According to an Accel press release, Mr. Breyer said in a Stanford Business School interview that he did not meet Mr. Zuckerberg until the fall of 2004 at Palo Alto's Village Pub after Mr. Zuckerberg moved to California.
• Facebook's defense relied solely on discrediting inventor Michael McKibben as its evidence of early commercial activity. Facebook provided no expert testimony, no source code, no engineering documents, no Leader engineer testimony, no third party testimony. Leader Opening Brief, Jul., 25, 2011, p. 16; also available at Leader.
  
• Facebook's attorneys admitted to the judge that they could not meet their burden without getting access to Leader's source code. However, after being granted access to login to Leader2Leader and access to the full Leader source code, Facebook produced no Leader source code at trial to prove the early commercial activity. Leader inventor Michael McKibben says that is because the programmer notations in the Leader source code prove they are wrong. Leader Press Release, Jul. 26, 2011.

Aaron Greenspan, the creator of one of the rival facebooks at Harvard called houseSYSTEM had this to say about the uncanny "student-rebel-hero" coverage that fellow geek Mark Zuckerberg received:

"The Crimson would run a front-page article on Mark and his site . . . The coverage was always the same and unequivocally positive . . . It was as if 14-year-old girls (with bad vision...) had taken over the newspaper on Plympton Street." Authoritas, Think Press, p. 292.

Dubious Origin Stories

The various Facebook origin stories are suspect. Mr. Zuckerberg testified in ConnectU that he alone built the Facebook site in "one or two weeks" while studying for finals in January 2004. A reasonable programmer knows that this claim is not credible, and wildly so. He testified that he never saw Leader's white papers, although the similarities are mathematically impossible without copying.

A reasonable person also sees the evident presence of an influential business figure behind the scenes—someone with an impressive ability to affect the news coverage priorities of The Harvard Crimson. No such influential person has ever been identified in the Facebook creation stories. According to the Accel Partners' press release cited above, no West Coast venture capitalists with influential Harvard contacts knew Mr. Zuckeberg at the time of the The Harvard Crimson coverage.

A reasonable person can see that without business and media help, hacking, theft, co-opting of the facebook ideas floating around campus, and copying of Leader's white papers, Mr. Zuckerberg alone could not have started Facebook on Feb. 4, 2004 while taking a full class load.

* * *

4. Facebook’s trial conduct

Opinion: One blogger's perspective

Leader won all verdicts where the playing field was even

Facebook slipped in changes to the "on sale bar" jury instructions that misstated the law and confused the jury

On the claims in Leader Technologies, Inc. v. Facebook, Inc., 08-cv-862 (D.Del. 2008) where the playing field was even, Leader won the verdicts, namely that Facebook "literally infringes" 11 of 11 Leader patent claims and that no published prior art exists. See Leader v. Facebook Jury Ballot.

On the claim of invalidity for "on sale bar and public disclosure" Facebook prevailed on the jury verdict which said that Leader had offered the invention in a commercial offer for sale more than twelve months before the priority date. USC 102(b). However, the playing field was not even, and the facts do not support this claim.

Facebook added the early commercial activity claim just three months before trial, after the close of all discovery; the new judge had only been on the job a few weeks

Just three months before trial, after the close of discovery, Facebook added their 35 U.S.C. 102(b) early commercial activity claim into the case, over Leader's objection of prejudice. Leader Opening Appeal Brief, p. 9.

Leader had no opportunity to prepare defenses

This meant that Leader had no opportunity to prepare its defenses with things like additional discovery, expert witnesses, testimony from the alleged recipients of the offers, source code, engineering records, and programmer testimony.

Leader has stated publicly that the programmer notations in its source code prove that Facebook is wrong. See Leader Press Release. Tellingly, Facebook knew this since it had petitioned the trial court six months earlier for access to Leader's source code. So presumably, if Facebook had found that Leader's source code supported their 102(b) claim, they would have paraded it before the jury. They did not. See Appeal Brief, p. 19.

However, since discovery had closed and the trial evidence had already been submitted to the court, Leader had no procedural chance to submit its source code into evidence in order to defeat this claim.

No testimony from the alleged recipients of the offers; no expert testimony analyzing the alleged offers; the no-reliance clause in the Leader non-disclosure agreements discredits Facebook's on sale bar claim

The docket shows that Facebook did not conduct a single deposition with any of the alleged recipients of the early commercial offers, namely The Limited, Boston Scientific, Wright Patterson Air Force Base. See Leader v. Facebook docket.

Leader's non-disclosure agreements contained a special provision called a "no-reliance" or "no legal effect" clause that specifically prevents preliminary discussions from being construed as offers. The Uniform Commercial Code ("UCC") recognizes such agreements between parties. See Restatement (Second) of Contracts, §21 (agreement not be be legally bound); See also Leader Renewed Motion for Judgment as a Matter of Law, p. 17, fn. 5; Leader JMOL Reply Brief, p. 7.

Facebook added convoluted jury instructions about secrecy and non-disclosure agreements that the court approved

To confuse this legal matter even further, Facebook proposed and the trial court approved a number of changes to the model jury instructions for patent cases. Leader objected to all these departures from the norm. Facebook made convoluted changes discussing secrecy and non-disclosure agreements when the model instructions make no mention of non-disclosure agreements and secrecy. See Uniform Jury Instructions for Patent Cases, United States District Court for the District of Delaware, 4.5 ON SALE STATUTORY BAR (PDF pp. 60-61).

Facebook's changes to the model jury instructions included two references to secrecy and non-disclosure agreements, namely:

1. "However, it is irrelevant whether or not the offer for sale was secret or non-secret;" and
2. "An offer to sell can invalidate a patent even if the offer was secret, such as under the protection of a non-disclosure agreement." Final Jury Instruction No. 4.7, ON SALE BAR, pp., 41-42.

These changes confused the jury to a chilling effect when considering that the "protection of a [Leader] non-disclosure agreement" in its no-reliance clause specifically negates the possibility of an offer for sale.

The jury can be forgiven for not knowing these intricacies in patent and contract law. Unfortunately many judges and attorneys have an inadequate grasp of the UCC, and an even fewer know about the the Restatement (Second) Contracts and its "no legal effect" provision. This trial appears to have suffered dramatically from this ignorance. See MBIA Ins. Corp. v. Royal Indem. Co. at 210 (Unambiguous written agreements should be enforced according to their terms, especially between sophisticated parties).

A reasonable person can see that Facebook knew the no-reliance clause destroyed their on sale bar argument, so they set out to neutralize its legal effect with more "dark arts" to confuse the jury, and the law on the subject.

The bottom legal line is simple: The no-reliance clause  in Leader's non-disclosure agreements kills Facebook's on sale bar claim, as a matter of law.

Facebook's expert proffered bad science

In an evident attempt to perfect a trifecta of jury confusion, Facebook's invalidity expert Dr. Saul Greenberg offered erroneous science regarding Leader's provisional patent disclosure. In order for Facebook to put its early commercial activity claim in play, it first had to knock out Leader's earlier provisional patent priority date of Dec. 11, 2002. Therefore, Facebook needed to prove that the invention disclosure in the provisional patent application was somehow deficient. Dr. Greenberg claimed that the provisional disclosure did not anywhere disclose the presence of a "tracking component." The prima facie evidence disproves Dr. Greenberg's testimony, but worse, he used bad science to prove his point.

Dr. Greenberg's methods violated the principle of bivalence by asserting that two diametrically opposed truths were both true. This bad science formed the basis of his testimony. Therefore, as a matter of law, his testimony must be dismissed. His testimony  had a chilling effect on the jury's assessment of the facts, and was the only testimony at trial that the provisional patent did not disclose the tracking component. Leader's expert witness Dr. James Herbsleb showed multiple instances of the tracking component.

For a fuller analysis of Dr. Greenberg's expert testimony, go to another entry in this blog series titled "Expert witness practices "dark arts."

In lieu of hard evidence. . .

Facebook goal was to concoct a trial story that inventor Michael McKibben admitted in an "inventor's admission" that the Leader2Leader brand has always contained the invention. He did not, as the record shows.

Fig. 1: Rube Goldberg gadget to sharpen a pencil.
Linked from: www.rubegoldberg.com
Click here to enlarge.

Rube Goldberg would be proud

Rube Goldberg's cartoons are famous for depicting convoluted gadgets. See Rube Golberg gadgets.

Facebook's Rube Goldberg gadget for Leader v. Facebook included the following components. We have written on these elements in previous posts, so they will only be summarized and cited here.

Elements of Facebook's fabricated trial story are: (1) No infringement, Leader v. Facebook Jury Ballot, Mark Zuckerberg used Leader white paper to build Facebook; (2) Misdirection, Missing Documents; (3) Sandbagging, Facebook’s "court room theater;"; (4) Fabrication, No evidence? No problem. Fabricate it.; (5) Innuendo, Facebook's "I'm tired" tactic; Patent Office records disprove Facebook; (6) Unreliable science, Expert witness practices "dark arts;" (7) Confuse the law, Patent Office records disprove Facebook, Facebook's "I'm tired" tactic, No evidence? No problem. Fabricate it., and Facebook's trial conduct.

The trial court erred in allowing Facebook's new claim so close to trial

Trial courts are not permitted to allow new claims to be added to a case if adding those new claims prejudices or surprises the party against whom they are asserted, are likely to disrupt the trial, the prejudice cannot be cured before the trial starts, and other factors. See Meyers v. Pennypack; Federal Rules of Civil Procedure 37(c)(1) ("If a party fails to provide information . . . as required by Rule 26(a) or 26(e), the party is not allowed to use that information . . .  to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.").

Facebook's amended claim after the close of written discovery and depositions, prevented any possibility for Leader to introduce its source code, engineer testimony, testimony of the parties alleged to have received the offers, and prepare an expert report to defend against the claim. Leader objected.

Facebook plied more "dark arts," and the court did not stop it. "Judicial discretion" is usually the reason appeals courts do not overturn such trial court decisions, but perhaps this case should be an exception.

Attorney Rules of Professional Conduct

Attorneys are called upon to zealously represent their clients within the bounds of the law, but are not called upon to breach their ethical duties to achieve them. See American Bar Association, Model Rules of Professional Conduct.

1. Respect: “A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials.” Id., Preamble [5].
   
   
2. Improvement: “As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession.” Id., Preamble [6].
   
   
3. Confidence: “a lawyer should further the public's understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.” Id.
   
   
4. Public Interest: “The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar.” Id., Preamble [12].
   

Paraphrasing Leader's argument about the efficacy of the "clear and convincing" evidence standard of invalidity,[1]

if the Rules of Professional Conduct are to be anything more than an empty semantic exercise, a serious review of conduct in this case may be called for.

* * *

Footnotes:

[1] "If requiring clear and convincing evidence of invalidity is to be 'more than an empty semantic exercise,' it must mean that the jury's verdict here cannot stand. Addington v. Texas, 441 U.S. 418, 425 (l979) (quotations and citation omitted)." Leader Opening Appeal Brief, p. 37-38.

8. Expert witness practiced "dark arts"

Opinion: One blogger’s perspective

Facebook's expert witness Dr. Saul Greenberg claimed not to know the purpose of basic web programming functions; flip-flopped from "wild guess" to learned opinion

Trial courts have a duty to disqualify unreliable science to prevent jury confusion

Unreliable science was presented by Facebook’s expert witness in Leader Technologies, Inc. v. Facebook, Inc., 08-cv-862-JJF/LPS (D.Del. 2008). This bad science appears to have confused the jury. Indeed, it would confuse experts since it needs a Venn diagram to figure out that the opinions are ambivalent. The court failed to catch it, allowing Facebook's "dark arts" to turn the case toward their early commercial activity claim—a claim added by Facebook only after the close of discovery. The untimely-filed claim prevented Leader from gathering evidence to defend against it. Leader Opening Appeal Brief, p. 9; also available at  Leader. With no hard evidence itself of early commercial acitivity, Facebook created more jury confusion with an attack on the credibility of the inventor; conduct better suited to an episode of Law & Order.

A well-known "dark arts" tactic in patent infringement trials is for the infringer to find an expert witness willing to mislead the jury. Since a lay jury cannot assess the reliability of the science presented, it is the duty of the trial court to disqualify unreliable expert testimony. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579 (Supreme Court 1993) at 595-597 (the trial judge must ensure the reliability of scientific testimony).

"Dark arts" tactics include lying, misleading, bad science, motion practice (delay), twisting words, bad lighting, deception, sandbagging, procedural tricks, fishing expeditions, trick questions, slander, misdirection, innuendo, pontificating, feigning mistakes, fawning, intentional bumbling, fabrications, legalese, obfuscation, dishonesty, manipulation, condescention, destruction of evidence, insipid flattery, making contradictory claims, intentional confusion, pandering, doctored evidence, planting evidence, threats, witness intimidation, trial theater, juror tampering, political manipulation, and late claims.

On the subject of the provisional patent, Facebook's expert witness was Dr. Saul Greenberg, professor of computer science at the University of Calgary. Leader's expert was Dr. James Herbsleb, professor of collaborative science at Carnegie Mellon University. Both men are prolific technology writers and both are recognized in the field of science addressed by Leader's U.S. Patent No. 7,139,761.

Facebook wanted to have its cake and eat it too

Facebook asserted contradictory positions that would certainly confuse a jury. The jury opened the door to Facebook's "on sale bar and public disclosure" claim only after it decided not to recognize Leader's earlier provisional patent application date of Dec. 11, 2002.

Facebook's assertions are illogical. They claimed ambivalently that: (1) the provisional patent did not disclose an invention "ready for patenting" (consistent with its false marking claim) and (2) the technology did contain the invention, was "ready for patenting," had been offered for sale, and had been disclosed in element-by-element detail to alleged offerees prematurely (antithetical to its false marking claim). Tellingly, no offeree testimony, no source code, no technical documents, no expert witness testimony was presented. See No evidence. No problem. Fabricate it.

Put in layman's terms, Facebook accused Leader of disclosing all the elements of the invention to sales prospects, while simultaneously not disclosing all those same elements to the Patent Office where its rights could be protected. Illogical positions are always confusing until the aim function becomes clear.

Department of the "Dark Arts"

Facebook's "dark arts" department apparently figured it could not lose by asserting contradictory positions on the theory that the jury would be confused and likely let one of them through. In other words, Facebook wanted to have its cake and eat it too, and the jury obliged.

Even so, Leader argues that Facebook failed to present any evidence of this alleged early commercial activity. Nevertheless, alleged early commercial activity is not the focus of this blog posting. This posting focuses on Facebook's allegation that the provisional patent did not disclose a "tracking component." Dr. Herbsleb said that it did and gave multiple examples, including a blind-study write-up by one of his students showing that he understood that a tracking component was indeed disclosed by the provisional application.

User tracking

Web browsing cannot work without at least basic user tracking. When one goes to a website, a special program tracks one's movement. Otherwise, one could not navigate from web page to web page. Programmers call your visit to a website a "session" and your location at any given time while on that site a "state." Every beginning web programmer learns this. Dr. Herbsleb Testimony, Trial Tr. 11326:7-8 ("It is well-known that this is the purpose of session state libraries").

First answer: "Wild guess"

On the other hand, Dr. Greenberg said he would be making a "wild guess" as to the purpose of the Java "import statements" in the provisional application. Trial Tr. 10903:10; See Leader Provisional Patent, p. 11. (Java is a popular web programming language developed by Sun Microsystems.)

Second answer: Dr. Greenberg described the contents of the "wild guess" box that he had just said was empty

However, just a few minutes later he contradicted that statement by "using my knowledge of programming" to describe the detailed actions of one of those import statements. In other words, Dr. Greenberg could later understand what he could not earlier understand. Trial Tr. 10904:8-10905:15.

For example, Dr. Greenberg provided detailed opinion about a generally understood element of the "actions" import statement, namely "action.addactionlistener," after having just finished saying he had no idea what could be in any of the import statements. This is not reliable scientific opinion. Tellingly, he was not similarly able to explain the generally understood user tracking purpose of a "sessionstate" import statement, and that code in the provisional application like "requestState.getCurrentUser( ).getId() );" would necessarily be tracking user movement. In fact, he went out of his way to say a flat "No" when asked if the provisional patent discussed user tracking. Id., Tr. 10905:16-24. Even an ordinary layman can read "CurrentUser" and "getId" and is about a user. And, an ordinary Java programmer knows that "State" tracks a user's movement from web page to web page. Id. 10903:14-10904:15; Leader Provisional Patent, p. 11-19.

At best Dr. Greenberg's answer is ambiguous since one cannot say credibly that one doesn't know what is inside a box, then proceed to describe its contents. Worse, Dr. Greenberg is obfuscating; counting on the jury being confused by the technical jargon. At worst, he is lying. None of these possibilities serves the purpose of an expert witness to assist the finders of fact in determining the truth.

The Federal Rules of Evidence 702, Testimony by Experts, states:

"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case."

"The sole justification and purpose of expert testimony is to assist the trier of fact to find a solid path through an unfamiliar and esoteric field." Thompson v. Merrill Dow Pharmaceutical at 241.

Dr. Greenberg failed to use reliable principles, and having failed there, did not apply reliable principles to the facts, and therefore failed to assist the trier of fact.

Exclude expert testimony that is not credible

The Federal Circuit Court of Appeals requires a trial court to exclude expert testimony that is not credible. Christophersen v. Allied-Signal Corp. at 1127 ("If the record establishes a critical fact contrary to the expert's testimony, or if a court may take judicial notice of a fact that fatally contradicts the assumptions of an expert, then his or her testimony ought to be excluded").

Mathematically speaking, Dr. Greenberg violated the principle of bivalence— stating two contradictory truth values when only one can be true. Dr. Greenberg is not permitted to first say a box is empty, and then proceed to describe its contents. That is like saying the lake is empty, but my swim in it was refreshing. A reasonable person knows that one cannot swim in an empty lake.

An opinion founded upon a wild guess is not credible, or reliable; Dr. Greenberg's testimony confused the jury

Dr. Greenberg's expert testimony confused the jury, who as a result invalidated Leader's earlier provisional priority date. Had that date been affirmed, then the entire early commercial activity claim would have been moot.

No requirement that a provisional application must "work"

Dr. Greenberg's testimony contains numerous misconstructions of the law with regard to the disclosure requirements of a provisional patent. For example:

DR. GREENBERG: "First, I have to say I don’t know if the code exists. I can't tell if this code is working code. Is it actually code that they've actual compiled to run? I don’t know." Trial Tr. 10902:13-16.

The law makes no requirement that software provisional patents contain "working code." In fact, the law asks the patentee to exclude those elements that are well known in the art. Therefore, by the very nature of the U.S. Patent Office ("USPTO") instructions, no disclosure will actually "work" as Dr. Greenberg implies that it should. This would certainly confuse the jury. It is not Dr. Greenberg's role to interpret law to the jury. The trial court erred in not correcting this legal error. See MPEP 2164.01 ("A patent need not teach, and preferably omits, what is well known in the art").

Therefore, contrary to Dr. Greenberg's erroneous implications about the legal requirement, Leader had no requirement in law to disclose the general nature of tracking user movement on a website, and the court failed to tell this to the jury. Leader's disclosure duty was to disclose the innovative element(s) of what is being tracked, which Leader did disclose, namely "webs" and associated multiple "contexts," among other things. See Leader Provisional Patent; See also full trial record on infingement where there was a robust "battle of experts."

USPTO instructs inventors not to disclose menial tools

DR. GREENBERG: "I can’t tell is whether these files com.leader.util or debug [or "actions" or "sessionstate"], whether they exist or not. I have no idea whether these are just place holders or if they have stuff there." Id., Tr. 10902:44-10903:4.

DR. GREENBERG: "the actual stuff in these things designated by the import isn’t there. They did not deliver that. I've read other patent applications, other things, before and sometimes they come with a floppy or CD that says, here’s our stuff. For one, this is all I have to work with. I would be guessing." Id., Tr. 10903:14-22.

Since the USPTO asks inventors not to submit elements of an invention that are well known in the art, programming elements like "debug," "util," "actions" and "sessionstate" should not be included in the disclosure of a web application. See MPEP 2164.01 above; See also Matter of Application of Sherwood at 817 817 ("If these bridge-gapping tools are disclosed, there would seem to be no cogent reason to require disclosure of the menial tools known to all who practice this art").

DR. GREENBERG: "Com.leader.util, maybe that means there's a utility program in it, but there’s another one called asp.facebook.util [sic], so I don’t know what's in it. I just make a wild guess." Id., Tr. 10903: 6-10.

Programmers of ordinary skill know the general purpose of web-based utility import statements. Therefore, this statement is not credible. Dr. Greenberg's public writings reveal that he knows that "session state" tracks a user. Indeed, the entire computer industry knows this.

Dr. Greenberg knew the purpose of "sessionstate"

Dr. Greenberg's public writings show that he is being disingenuous and in fact knows the purpose of common import statements. For example, he wrote about "sessions" and "tracking over pages" in 1999 in a National Institute of Standards paper titled "Getting Back to Back: Alternative Behaviors for a Web Browser Back Button." He also recommended a Java program named ArgoUML (See also ArgoUML JavaDocs)  in a Western Computer Graphics Symposium paper in 2000 that specifically describes a "buildTransition" web session program as "Build a transition between a source state and a target state" (emphasis added). One is hard-pressed not to understand that this describes user movement from a source web page to a target web page.

The computer industry knows the purpose of "session state"

The prestigious SANS Institute published a presentation in 2002 titled “State maintenance in Web applications” which says "State maintenance (also known as session maintenance, or session state) is a familiar issue for Web programmers" (slide 3) (emphasis added). Sun Microsystems, the developer of Java, stated in "Maintaining Client State" in 2002 that "the applications are responsible for maintaining such state, called a session" (emphasis added). The Microsoft Computer Dictionary defines "session state" saying "In the Java programming language… a session bean. . . can. . . maintain conversational state across methods and transactions. . . [and] manages this state."

One cannot have knowledge of something for which one has previously abjured knowledge; Dr. Greenberg transformed a "wild guess" into a detailed explanation "using my knowledge of programming"

Dr. Greenberg should not have been permitted to confuse the jury with bad science by first saying he couldn't give any opinion about the Java import statements in the provisional patent, then proceed to give an opinion on the parts of the disclosed code that would support his storyline.

MS. KEEFE: "I'd like to point your attention to the middle of the page where it says action.addactionlistener. Do you see that code?"

DR. GREENBERG: "I do."

MS. KEEFE: "What does that code do?"

DR. GREENBERG: ". . . I believe in looking at this and using my knowledge of programming that what this essentially does is really [sic] the user interface part for somebody to manually set the relationship of one board to another. [Dr. Greenberg then proceeds to give quite a detailed assessment of what the code does]." Id., Tr.10904:8-10905:15.

The "dark arts" smoking gun "No"

MS. KEEFE: "Does anything in this disclosure [disclose] tracking a user’s movement from one board to another board?"

DR. GREENBERG: "Neither is it in this code and nowhere else in the code."

MS. KEEFE: "Does anything in this code disclose tracking a user’s movement from one context to a separate context?"

DR. GREENBERG: "No." Id., Tr. 10905:16-24

This Dr. Greenberg testimony was the only testimony at trial that alleged that the Leader provisional patent did not disclosure a tracking component.

Trial court error—Dr. Greenberg’s testimony should have been disqualified as a matter of law—"Dark Arts" does not equal good science

The moment that Dr. Greenberg provided bad science the trial court should have disqualified his testimony. In effect, Dr. Greenberg proffered a detailed opinion about a "wild guess." This is not credible science. Juries must be able to rely upon the veracity of experts so that they can weigh the facts based upon credible scientific guidance from the expert witnesses.

Facebook's "Dark Arts" Perfected—MS. KEEFE: "Does anything in this disclosure [disclose] tracking a user’s movement;" DR. GREENBERG "No"

That was Dr. Greenberg's testimony. However, Dr. Herbsleb provided substantial testimony about what one of ordinary skill knew about the tracking component from the provisional patent disclosure. The evidence confirms Dr. Herbsleb's testimony, for example:

1. Tracking a user's movement is endemic to the disclosure:
   "com.leader.osapplications.sessionstate Provisional Patent Application, p. 11.
2. Tracking a user’s movement is endemic to the disclosure:
   "requestState.getCurrentUser( ).getId() );" Id., p. 13, 15, 16.
3. Tracking is implicit in the statement:
   "[a]s users create and change their contexts, the files and applications automatically follow, dynamically capturing those shifts of context." Id., p. 6, 9.
4. A user tracking component is endemic to workflow automation:
   "A > B > C is the workflow process we want to automate. We assign 3 different people to each item, Therefore A(l ,2,3) > B( 4,5,6) > C(7,8,9)." Id., p. 10; Lockwood v. American Airlines at 1572 (“the exact terms need not be used”).
5. Tracking users is implicit to the very name of the application “DYNAMIC ASSOCIATION OF ELECTRONICALLY STORED INFORMATION WITH ITERATIVE WORKFLOW CHANGES." Workflow disclosures occur 27 times in the provisional. Id., starting at p. 1; See also U.S. Patent Office (even the USPTO assumes user tracking as endemic to workflow in its publications).

Leader’s innovation over conventional tracking was its well-disclosed incorporation of "webs" and other context information into the tracking component. The incorporation of webs allowed the user to move between one context and another and the system was able to maintain knowledge of the user and his/her location. This innovation appears to have sparked the age of social networking.

The record discredits Facebook’s expert

Without Dr. Greenberg's testimony, the jury's decision to invalidate the earlier provisional patent application date of Dec. 11, 2002 should not stand as a matter of law. However, Facebook attorneys know that within their "dark arts" bag of tricks is the knowledge that dueling experts create a circumstance that the courts are hesitant to touch: dueling expert testimony. Once provided, it is difficult to argue that the jury got it wrong. So what do infringers do to introduce some evidence, any evidence, however dubious? They make it up. Then, once made up, it gets placed on the scales of justice along with the real evidence. Some evidence thus perfected, the Department of Dark Arts then goes to work to fool the jury. This is one of the dirty little secrets of patent law that has robbed many a patent holder out of his or her just reward.

However, in this case the record of Facebook's "dark arts" proves that: (a) the trial court erred in not disqualifying Dr. Greenberg's testimony the moment he used bad science, and (b) the prima facie facts show that one of ordinary skill knew that a tracking component was disclosed.

Dr. Greenberg rewriting law on provisional patent disclosure?

If the jury's decision to invalidate the earlier provisional patent date stands, it will establish a troubling precedent in which anything short of providing complete source code in a provisional patent application will be insufficient. The direct implication is that all provisional patents will have to be reduced to practice before they are filed.

In addition, a decision to affirm Dr. Greenberg's expert testimony could set in motion a requirement that provisional patents must actually "work" to meet the disclosure requirement.

Dr. Greenberg's uncorrected statement "I have no idea whether these are just place holders or if they have stuff there" implied that the Leader provisional patent application needed to have worked to be an adequate disclosure. This assertion is contradicted by In re Hayes Microcomputer Products, Inc. at 1534:

"an inventor is not required to describe every detail of his invention. An applicant's disclosure obligation varies according to the art to which the invention pertains. . . [and] is sufficient to satisfy the requirement of section 112, first paragraph, when one skilled in the relevant art would understand what is intended and know how to carry it out."

Was Dr. Greenberg's testimony "clear and convincing," a "mere scintilla," or null and void?

The Supreme Court stated in Anderson that it isn't good enough to have just a little evidence; stated in Munson that it is certainly not good enough to have no evidence; and re-affirmed the clear and convincing standard of proof in Microsoft v. i4i.

"The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient." Anderson v. Liberty Lobby, Inc. at 225.

"When a prayer for instruction is presented to the court and there is no evidence in the case to support such a theory it ought always to be denied, and if it is given, under such circumstances, it is error; for the tendency may be and often is to mislead the jury by withdrawing their attention from the legitimate points of inquiry involved in the issue." Schuylkill v. Munson at 448.

Dr. Greenberg's bad science disqualified his testimony as a matter of law. Therefore, since all the other evidence supported Leader's provisional patent priority date, the jury had no factual basis for invalidating the earlier date. A reasonable person can only conclude that the jury became confused by Dr. Greenberg's bad science and, per Munson, the court also confused the jury by diverting their attention from legitimate points of inquiry.

Leader states in its opening appeal brief that "if requiring clear and convincing evidence of invalidity is to be more than an empty semantic exercise, it must mean that the jury's verdict here cannot stand." Leader Opening Appeal Brief, p. 37; also available at Leader.

* * *

6. Facebook's "I'm tired" tactic

Opinion: One blogger's perspective.

Attorney Michael Rhodes exclaimed "I'm tired" four times during his questioning of Leader inventor Michael McKibben, his only witness

Attorney Michael Rhodes, Facebook's lead litigator in Leader Technologies, Inc. v. Facebook, Inc., 08-cv-862 (D. Del 2008), expressed his tiredness four times during his trial questioning of Leader inventor Michael McKibben. Mr. McKibben was  his sole witness for Facebook's on sale bar and public disclosure claim; claims that were allowed into the case after the close of discovery over Leader's objection of prejudice. Leader Opening Brief, p. 9-10; also available at Leader.

While questioning Mr. McKibben, Mr. Rhodes repeated four times:

"I'm tired."Trial Tr. 10704:2.

"I'm tired." Id., Tr. 10713:10.

"I'm getting tired, so they're trying to prod me." Id. Tr. 10757:18.

"I'm tired." Id. Tr. 10839:15.

Mr. Rhodes did not say he was tired at any other time

At no other time during the 9-day trial did Mr. Rhodes express his tiredness to the court. His sudden onset of tiredness during Mr. McKibben's testimony, coupled with the need for him to be prodded by fellow attorneys Heidi Keefe, Mark Weinstein, Samuel Citron O'Rourke and Ted Ullyo, would lead a reasonable person to believe that Mr. Rhodes was, in fact, stressed at being the point man in a Facebook attorney strategy to sandbag Mr. McKibben.

"I'm tired."

Mr. Rhodes is an experienced attorney-of-the-year litigator, so this sudden tiredness, and the need to be prodded, would indicate a level of uncharacteristic insecurity and stress. The Mayo Clinic identifies tiredness or fatigue as one of the key signs of stress. "Stress symptoms: Effects on your body, feelings and behavior," Mayo Clinic.

Probably the most telling proof that Mr. Rhodes' tiredness was actually stress and obfuscation is when he feigned tiredness to prevent Mr. McKibben from answering his rebuttal question about when Leader2Leader became a registered trademark ® (USPTO award date: July 29, 2003). Trial Tr. 10703:13-10704:2:

Q. It says Leader2Leader and then it
has a circled R. Do you see that?
A. I do.
Q. Does that mean there was a
copyright or trademark?
A. Registered trademark.
Q. Trademark.
So it was a registered trademark
at that point in time?
A. I'm not sure I had understand that
question.
Q. It was a bad question, wasn't it?
Didn't have a time period on it.
I apologize. I'm tired (emphasis added).

The pivotal element here is Mr. Rhodes' declarative question "So it was a registred trademark at that point in time?" Mr. McKibben asked for clarification, and Mr. Rhodes pleaded "I'm tired" and changed the subject. Leader's attorneys had no opportunity to follow up because Mr. Rhodes' question was in rebuttal. By not allowing Mr. McKibben to answer the question, Facebook's declarative question became fabricated evidence that "So it [Leader2Leader] was a registred trademark at that point in time" irrespective of whether Mr. McKibben answered the question, and despite the fact that Mr. Rhodes said it "[d]idn't have a time period on it."

USPTO answers Mr. Rhodes' question: July 29, 2003

Had Mr. McKibben been permitted to answer that question, Facebook's on sale bar and public disclosure sandbagging strategy would have died since the Leader2Leader trademark registration date of July 29, 2003 puts the Interrogatory No. 9 answer well past the critical date of Dec. 11, 2002. See U.S. Patent Office records disprove Facebook.

Who is "threading the needle?"

Ironically, Mr. Rhodes accused Leader five times in his closing argument of "thread[ing] the needle" to avoid on sale bar and public disclosure. See below. However, since Facebook presented no real evidence like source code, engineering documents, and expert testimony, one is hard-pressed not to conclude that Mr. Rhodes did indeed have "threading the needle" on his mind, but that it was Facebook who was threading the needle.

MR. RHODES' Closing Statement:

"thread this needle." Trial Tr. 11520:9.

"thread this needle." Tr. 11520:16.

"thread that needle." Tr. 11522:23.

"thread the needle." Tr. 11522:24.

"thread this needle." Tr. 11526:8.

Prodding

In fact, Mr. Rhodes' "I'm getting tired, so they're trying to prod me" was at a point in questioning Mr. McKibben where Leader developer Steve Hanna emails were presented. Tr. 10757:13-19. Facebook wanted to look at what Mr. Hanna wrote in a brief summary of company business activities regarding meetings Mr. McKibben had with Boston Scientific. However, a closer look at this email destroys Facebook's sandbagging because Mr. Hanna includes a schedule of engineering tasks that states that the beta testing of Leader2Leader, with release 1 of new invention included, would begin on Dec. 20, 2002, nine days after the critical date of Dec. 11, 2002. DTX-0776; Trial Tr. 10668:23; See also Trial Tr. 10760:13, 10762:20; 10822:13.

Leader NDAs had no-reliance clauses

All Leader documents submitted as evidence by Facebook contained a legal notice citing Leader's Proprietary & Confidentiality Agreement. That agreement contains a "no-reliance" clause stating that no discussions between the parties would have any legal effect. Leader's JMOL Reply Brief, p. 7 ("any alleged discussions of contractual terms would have 'no legal effect' pursuant to the non-reliance clause in Leader's NDAs. Group One, Ltd v. Hallmark Cards, Inc., 254 F.3d 1041, 1048 (Fed. Cir. 2001); see also, e.g., DTX 725A at LTI 155169; DTX 725 at LTI 149298, LTI 150931, LTI 151130, and LTI 151147"); See also Restatement (2nd) of Contract §21 (agreement not to be legally bound by preliminary discussions).

The Hanna evidence alone, introduced by Facebook, proves that Mr. McKibben's and Mr. Lamb's testimony was truthful and that the jury erred in succumbing to Facebook's court room theater regarding the no-legal-effect of Leader's business discussions.

Attorney arguments are not evidence

Mr. Rhodes appears to have been the one "threading the needle" to try and convert wholly attorney-orchestrated circumstances (re-engineered interrogatories, out-of-context deposition snippets, mere brand references, court room theater) into innuendo to sandbag Mr. McKibben's credibility. As the jury instructions said, attorney argument is not evidence (see above: Facebook's unanswered declarative question: "So it was a registered trademark at that point in time?"). Trial Tr. 11369:4-6 ("The lawyer's statements and arguments are not evidence").

* * *

5. Facebook's "court room theater"

Opinion: One blogger's perspective.

The law requires hard evidence; not innuendo, ambiguous cartoons, trick questions, spliced video snippets and mere disbelief

Facebook's "clear and convincing" burden of proof in Leader Technologies, Inc. v. Facebook, Inc., 08-cv-862-JJF/LPS (D.Del 2008) requires hard evidence like source code, expert testimony, engineering documents, programmer testimony, not merely an ambiguous Interrogatory No. 9, cartoons, a video snippet spliced out context, and disbelief transformed into affirmative evidence. See Leader Opening Brief, p. 16; also available at Leader; See also Trial Tr. 11428:2-6. The hard evidence requirement is well-settled patent law. Pfaff v. Wells Electronics, Inc., 525 US 55 (Supreme Court 1998); Group One, Ltd. v. Hallmark Cards, Inc., 254 F. 3d 1041 (Federal Circuit 2001); Linear Technology Corp. v. Micrel, Inc., 275 F. 3d 1040 (Federal Circuit 2001).

Facebook's lead attorneys from White & Case LLP turned Cooley Godward LLP were Michael G. Rhodes, Heidi Keefe, Mark Weinstein and Samuel Citron O'Rourke (who apparently began this case as an attorney for White & Case LLP before becoming inside counsel at Facebook sometime after this case began, although the timing is unclear). Attorney Ted Ullyot joined Facebook during this case.

Deposition expert Daniel Dain describes what attorneys do to create evidence from video-taped depositions:

"While simply relating the truth is the witness’s best weapon, that may not be enough if the opposing [tricky] attorney extracts unintended and often inaccurate admissions." Daniel P. Dain. "Preparing to Take and Defend a Liability Deposition," James Publishing, §440.

From Mr. McKibben's video-taped deposition, Facebook emphasized only the second half of a two-part question. They emphasized: "[Q.] Can you identify any iteration of the Leader2Leader product that in your opinion did not implement what's claimed in the '761 patent? [A.] That was a long time ago. I -- I can't point back to a specific point." Trial Tr. 11517:7-12; 10841:14-19.

The first half of the two-part question was "Q. Did you have any technique for identifying differences between various iterations of Leader2Leader product?" A. I believe that our developers kept track of that . But the name they gave to it, I don't remember." Trial Tr. 10841:11-13.

Without the context of the first half, the second half read alone is ambiguous.

Naturally, once a deponent is asked a question about dates not remembered from long ago, that person might refresh his memory in preparation for trial. But here again, Facebook's attorneys used the refreshing of the mind as further innuendo, stating, "MR. RHODES: when he [Mr. McKibben] comes to court, he has a really good recollection, doesn't he? . . . He can point to a specific point now." Trial Tr. 11516:18-20; 11517:13-14.

Facebook's False Syllogism (A+B=C) 

The court said the "evident finding" was the jury did not believe this answer, and was permitted to assume the opposite was true as "affirmative evidence." Leader Opening Brief, p. 23. The implications of this decision are chilling to the administration of justice. In this case, the supposed opposite of not remembering a specific point is that there was no point. Facebook's conclusion is a false syllogism.

A categorical syllogism has three parts: (A) the  major premise, (B) the minor premise and (C) the conclusion. Facebook had no basis for drawing the conclusion that there was no specific point. Since Facebook skipped the (A) major premise, they had no foundation for their (C) conclusion. Their testimony snippet (B), as presented, lacked foundation to draw any logical conclusion whatsoever.

False Syllogism:
(A) Major premise—[Skipped]
(B) Minor premise—Mr. McKibben could not remember a specific point long ago. Trial Tr.10841:18-19.
(C) Conclusion—[There was no point.]

The logical conclusion cannot be drawn that an inability to remember a specific point means that there was no point. If Mr. McKibben's whole testimony on this topic had been presented, the context provided a natural syllogism and destroys Facebook's argument (which would explain why they chose not to present the first part of their two-part question):

Testimony Syllogism:
(A) Major premise—Leader's developers kept track of specific points. Trial Tr.10841:11-13.
(B) Minor premise—Mr. McKibben could not remember a specific point long ago. Trial Tr.10841:18-19.
(C) Conclusion—Leader's developers should be asked about a specific point (they weren't).

The only conclusion that could logically be drawn from Mr. McKibben's trial testimony on the subject of Leader2Leader is that his developers were the persons to ask about the specific point at which Leader2Leader first incorporated the '761 invention. Facebook was given access to Leader's source code and developers, and they could have presented expert testimony. Tellingly, they presented no such evidence. Leader Opening Brief, p. 16; also available at Leader.

The "clear and convincing" burden of proof in law is there to prevent such court room theater from obscuring the truth, for example:

"An evaluation of all pertinent evidence must be made so that a sound determination of the credibility of the inventor's story may be reached." Price v. Symsek, 988 F. 2d 1187 (Federal Circuit 1993) at 1195.

The law requires "disclosure to others or embodiment of the invention in some clearly perceptible form, such as drawings or model, with sufficient proof of identity in point of time." Price at 1194, citing Mergenthaler v. Scudder, 11 App.D.C. 264, 278-79 (D.C.Cir.1897) at 278.

Facebook provided no "evaluation of all pertinent evidence" in such "perceptible form, such as drawings or model," which, in this case, would necessarily be Leader's source code. As Leader states in the appeal brief, Facebook requested and was given access to Leader's source code, but presented none of it at trial to make its case for on sale bar and public disclosure. Leader Opening Brief, p16; also available at Leader. Inventor Michael McKibben said that is because the programmer notations in the source code prove Facebook is wrong. Leader Press Release, July 26, 2010.

* * *

9. Patent Office records disprove Facebook

Opinion: One Blogger's Perspective

Leader’s registered trademarks, at minimum, date Interrogatory No. 9 at Dec. 16, 2003 (ignoring its 2009 context)—one year after the priority date; placing it at least 12 months beyond the reach of accusations of early commercial activity

Facebook in Leader Technologies, Inc. v. Facebook, Inc. 08-CV-862-JJF/LPS (D. Del. July 27, 2008) appears to have relied on the fact that the jury would be confused by Leader's use of the “Leader2Leader” brand name in both 2002 and 2009. Leader explained that Leader2Leader was a brand container for a suite of products. Leader Opening Brief, p. 7; also available at Leader. Jury confusion aside, Leader’s appeal brief points out that the registered trademarks for Leader2Leader® and Digital Leaderboard® were issued on July 29, 2003 and Dec. 16, 2003, respectively. Id. p. 34. Neither date places the answer in 2002 under any theory of interpretation.

Search the Patent Office records yourself

Anyone can access the public records of the U.S. Patent Office website at http://www.uspto.gov. To search the trademark records, under Trademarks, click 2. Search Marks, then click "Basic Word Mark Search."

In the “Search Term” field, type “Leader2Leader” (use quotation marks). Choose the Submit Query button. The search will return four results. Click on Serial Number “76267476." You will see that the “Registration Date” was "July 29, 2003."

Then, go back two steps with your browser Back button and type “Digital Leaderboard” (use quotation marks). Choose the Submit Query button. This search will also return four results. Click on Serial Number “76271157”. You will see that the “Registration Date” was “December 16, 2003”.

The USPTO trademark award dates prove that there is no possibility, under any theory of interpretation, that Interrogatory No. 9 could have referred to the products in 2002 (since both registered trademarks were not issued until 2003). In other words, Leader's Interrogatory No. 9 answer that "Leader2Leader® powered by the Digital Leaderboard® engine is the only product or service by Leader which embodies . . . the asserted claims of the '761 patent" means that any product using both registered trademarks, at the earliest, can only refer to a time after Dec. 16, 2003—a full year after the filing of the provisional patent. Leader Opening Brief, p. 11, 17, 33, 34; also available at Leader.

Trademark laws are little understood by judges, attorneys and juries

One can understand how a lay jury could get confused by such an esoteric legal subject as the legal distinctions between trademark ™ and ® markings. And, although the court should not be confused, such confusion does extend to the bench. Judge John C. Coughenour, U.S. District Court, Western District of Washington, said "often the judge does not understand what they [attorneys] are saying [about intellectual property law] . . . then trust me [neither does] the jury." John C. Coughenour, "Litigation of Intellectual Property in the United States." CASRIP Publication Series No. 5, 1999, Univ. of Washington School of Law, p. 28. This case appears to have suffered from Judge Coughenour's lack of understanding of trademark law. Judicial notice of the registered trademarks should have dispensed with Interrogatory No. 9 as a matter of law.

Leader asserts that without evidence of early commercial activity, the verdict of early commercial activity must be overturned as a matter of law. Facebook argues that Interrogatory No. 9 is an admission that the Leader2Leader product in 2002 practiced the invention. The 2009 context of the question, as well as the registered trademarks, appear to soundly refute Facebook's contentions.

Your USPTO search just proved Facebook's argument fallacious . . . as a matter of law.

* * *