Donna Kline's interview with Leader CEO Michael McKibben

The fight goes on. Click here to read Leader's Federal Circuit Opening Brief and click here to read Donna Kline's blog that includes an eyewitness report from the Federal Circuit Appeal Hearing, including the Facebook appeals attorney's apology to his client.

Friday, August 19, 2011

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
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.

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").

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