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.

Monday, August 15, 2011

3. No evidence? No problem. Fabricate it.

Opinion: One blogger's perspective.

Misconstrued Jury Instruction

The Leader Technologies, Inc. v. Facebook, Inc. 08-CV-862-JJF/LPS (D. Del. July 27, 2008) trial record confirms Leader's appeal brief which said that Facebook focused solely on getting the jury to disbelieve inventor Michael McKibben in lieu of presenting hard evidence. Leader Opening Brief, p. 11-12; also available at Leader. Judge Stark's instruction to the jury said "it is your duty and privilege to believe the testimony that in your judgment is the most believable and disregard any testimony that [in] your judgment is not believable." Trial Transcript, Jul. 27, 2010, Tr. 11373:11-14.

However, Facebook's attorney Michael Rhodes said in his closing "And this jury instruction, I'd ask that you look at this because this is the instruction you have to look at to assess credibility. What it tells you is if there are parts of the story that are contradictory and inconsistent, you can ask yourself whether you want to leave the whole story. That’s what it says. That’s [Jury Instruction] 1.7" Id., Tr. 11526:11-18.

JUDGE STARK: disregard testimony not believed;
MR. RHODES: disregard the whole story

A simple read of English shows that Mr. Rhodes misconstrued the jury instruction. Did this confuse the jury? The instruction does not permit the jury to disregard "the whole story" if "parts" are disbelieved. Mr. Rhodes is ambiguous as to whether he is referring to Mr. McKibben’s testimony or all the trial evidence. Either way, Facebook does not meet its burden. If he refers to Mr. McKibben's testimony, then there is no other evidence. If he is referring to all the other evidence, then he is misstating the jury instruction, since the jury is not permitted to ignore the other evidence (and if there is no other evidence, then Facebook has not proved anything). The Court's Opinion that transformed the jury's "evident finding that Mr. McKibben was not testifying credibly" into "affirmative evidence" that the opposite is true has no support in law. Opinion 51; See also Leader Opening Brief, p. 23; also available at Leader. If the law allowed disbelief to become evidence, then no nervous witness who is telling the truth would be safe from innuendo and personal attack. Indeed, even simple pauses in answering a question might look bad and be enough to turn a jury's attitude.

Leader's opening brief states that Mr. McKibben could not remember when Leader2Leader first incorporated the '761 invention and that inability to recall past dates is not evidence that the opposite is true. Leader Opening Brief, p. 34; also available at LeaderSee also "Facebook's court room theater." In fact, Facebook's JMOL opposition quotes this testimony out of context. Facebook quotes only the second part, starting with "[t]hat was a long time ago. I -- I can't point back to a specific point." Facebook contends that this was an absolute admission that Leader2Leader practiced the invention in 2002. Facebook JMOL Opposition, p. 7; See also Trial Transcript, July 23, 2010, Tr. 10841:14-19. However, what Facebook fails to quote is Mr. McKibben's previous statement that "I believe that our developers kept track of that. But the name they gave to it, I don't remember." Trial Transcript, July 23, 2010, Tr. 10841:8-13. In other words, Mr. McKibben testified that there was such a specific date that was kept by his developers, but that he couldn't remember it. Trial Transcript, July 23, 2010, Tr. 10841:8-10("Q. Did you have any technique for identifying differences between various iterations of Leader2Leader product?").

Mr. McKibben's video-taped deposition snippet is ambiguous at best, and at worst for Facebook, proves they are wrong. Either way, it does not meet the clear and convincing standard. And certainly, the jury was not free to create affirmative evidence of the ostensible opposite. What is the opposite of not remembering a specific point? No specific point? A specific point? Several specific points? A host of points? A sliding iteration of increasingly important points? The jury does not know and was not free, in law, to speculate. Therefore, their action must be legal error.

Old deposition trick: turn a video-taped pause into an accusation of lying

James Publishing's instructions to witnesses illustrates the no-win situation for witnesses regarding pausing before answering a question. On the one hand they counsel that a witness should not answer too quickly, and should pause to make sure he or she fully understands the question before answering (court stenographers generally do not document pauses). On the other hand James counsels that if you pause when being video-taped, your pause can look like you are being less than forthcoming, when in fact, you are simply following your attorney's deposition instructions to think before answering. Daniel P. Dain. "Preparing to Take and Defend a Liability Deposition," James Publishing. Since the jury was not shown Mr. McKibben's whole deposition, they could have no sense of whether Mr. McKibben paused before answering every question. Short of having access to the video tape, we'll never know since the deposition transcription did not document pauses. Hence, the wisdom of the jury instruction to disregard such testimony if not believed, and then to look for other hard evidence.

No evidence beyond innuendo

Why would Facebook rely solely on Mr. McKibben's testimony for evidence of early commercial activity (no source code, no expert testimony, no engineer testimony, no hard evidence)? That choice should have resulted in one of two possibilities, neither of which would be favorable to Facebook: (1) either Mr. McKibben testimony that there was no such activity was believed, or (2) Mr. McKibben was disbelieved and his testimony discarded. Facebook's desperation move seems to have relied upon phantom options 3, 4 and 5. They relied upon: (3) the jury disbelieving Mr. McKibben; (4) the jury transforming that disbelief into evidence that the opposite was true; and (5) the Court affirming that disbelief could be transformed into "affirmative evidence" of an ostensibly opposite phantom fact for which the only support is disbelief.

Resurrecting (what should have been discarded) evidence

The law and the jury instruction said that testimony not believed must be discarded. What happened at this trial is just the opposite. Leader Opening Brief, p. 24; also available at LeaderSee also Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485 (1984) at 512. The court wrote that the "evident finding" is that the jury did not believe Mr. McKibben's testimony. Therefore, it should have been disregarded. Instead, in an apparent accommodation to Mr. Rhodes' alternative theory of jury instruction, the jury resurrected testimony it was instructed to disregard if not believed, constructed a new piece of evidence, and declared it "affirmative evidence" of early commercial activity. Leader asserts that this is legal error. Leader Opening Brief, p. 24; also available at Leader.

Cartoons, animations and e-Bay for Dummies

Facebook presented a lot of "cartoons and animations drawn up by lawyers." Trial Transcript, Jul. 27, 2010, Tr. 11445:9-10. However, Facebook's witnesses all said "I created some exhibits" but they were "exactly the same as the previous person." As Leader's attorney emphasized "[t]hey didn't create the slides. The lawyers created the slides." Id., Tr. 11445:9-21.

More importantly, Leader's attorney Paul Andre pointed out the absurdity of Facebook's witnesses, including their expert witnesses Dr. Michael Kearns and Dr. Saul Greenberg, showing cartoon illustrations of Facebook's code rather than their actual code. He said "They did use a lot of cartoons and animations. They showed a picture of the Facebook website and a fake photo table." Id., Tr. 11445:22-11446:5.

By contrast, Mr. Andre said "We [Leader] have you seven sources, source code, website, three types of documents. We showed you testimony of the engineers. We showed you the testimony regarding the applications." Id., Tr. 11450:24-11451:4.

Mr. Andre continued "They gave you dummies. That's it. E-Bay for Dummies. That's it. That's all the evidence they gave you. Their own testimony proves they infringe." Id., Tr. 11451:5-8.

Reinventing Interrogatory No. 9

In perhaps the most dramatic admission at trial, Facebook's attorney Michael Rhodes stated in his closing argument that:
“MR. RHODES: But now what they say is, you didn't ask the question correctly. You didn't ask me about the version in 2002, even though the purpose of asking the question is to figure out whether it did, so now they're dancing. Now they're dancing. This is 2009. Why? Because that's when I asked them the question, in 2009, and he swore to it under penalty of perjury.” Trial Transcript, Jul. 27, 2010, Tr. 11516:10-17.
This admission is critical because Facebook is admitting to having asked an ambiguous Interrogatory No. 9 question in 2009 whose answer they would reinvent at trial into an answer about the technology in 2002. Leader Opening Brief, p. 17; also available at Leader.

Mr. Rhodes was referring to Interrogatory No. 9 where Leader was asked in 2009 which Leader products practice (present tense) the invention. Id., p. 11, 17, 32, 33. Leader answered "Leader2Leader® powered by Digital Leaderboard®" At the time this question was asked of Leader, Facebook had not asserted a claim for early commercial activity. At that time Facebook was asserting "false marking" which essentially claims that Leader never invented anything. Facebook did not add early commercial activity (35 U.S.C. 102(b)) claims until after the close of discovery, giving Leader no opportunity to prepare its defenses. Id., p. 21, 22.

Therefore, Mr. Rhodes was admitting that Facebook had an improper purpose in asking Interrogatory No. 9. He was admitting that Facebook intended all along (MR. RHODES: "the purpose of asking the question is to figure out whether it did") to create evidence of early commercial activity in 2002 from an admission about the technology in 2009. Leader argues that "Leader had no duty to anticipate defenses that Facebook had not yet raised."Id., p. 33. Leader explained that the brand name was a container in which all inventions were placed, so its contents changed over time, as new components were created.

It would appear that Mr. Rhodes trial conduct confused the jury. The law and the jury instruction said that attorney argument, while it may have been effective court room theater, is not evidence. Id., p. 23.

Burden of Proof Never Shifted to Leader

Facebook's argument in support of the verdict for early commercial activity relies completely on Mr. McKibben's disbelieved testimony and Interrogatory No. 9. In fact, Facebook asserted that "Mr. McKibben did not, for example, identify a single facet of Leader2Leader that underwent any change in 2002 (or at any other time)." Facebook Opposition to JMOL, p. 9. However, Leader argues that the clear and convincing burden of proof to prove early commercial activity pursuant to 35 U.S.C. 102(b) (element-by-element) was Facebook's and that burden never shifts to Leader. Leader Opening Brief, p. 21; also available at Leader; See Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348, 1359 (Fed. Cir. 2007). (To find this legal reference, click on the Pfizer link, then look for sections "1348" and "1349" on the left. The cited law will be in that section.)

See also Facebook's court room theater.

* * *

No comments:

Post a Comment