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

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 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.

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