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.

* * *