10. Facebook's jury binder innuendo

Opinion: One blogger's perspective

Facebook's jury binder inferred relationships between items of evidence that confused the jury

On the 4th day of the Leader Technologies, Inc. v. Facebook, Inc., 08-cv-862 (D.Del. 2008) trial, Facebook presented the jury with a 3-inch thick binder of evidence during their cross-examination of Leader inventor Michael McKibben.

On this first day of Mr. McKibben's testimony, Facebook’s attorney Michael Rhodes referred to only one document in the binder, namely a 2009 Interrogatory No. 9. See No evidence. No problem. Fabricate it. This interrogatory answered a Facebook question about the features of the Leader2Leader brand as sold in 2009. According to knowledgeable sources, this interrogatory was placed in the back of the binder; requiring the jury to flip through two inches of other contents to get to the interrogatory.

Those two inches of content were year 2000 Leader engineering graphics designs that included a Leader2Leader logo. In other words, they were pictures of prospective computer screens the way a user would see them once they were created with real software code.  These graphics are the software  equivalent of an artist's rendering of one's "dream house." Just as a dream house picture is a far cry from the real house (and many things can change before it is finished), so to with software interface design graphics. See Patent Office records disprove Facebook.

McDay 1: "upon your oath" and "under penalty of perjury"

Reminiscent of Boston Legal, in perhaps Mr. Rhodes' most dramatic moment by all accounts, he reminded Mr. McKibben "upon your oath" that he should not lie about whether or not Leader2Leader was offered for sale in the 2002. Mr. McKibben said Leader2Leader was a suite of products, and that the invention was not included in the suite until days before the Dec. 11, 2002 provisional patent filing. Indeed, Facebook played fast and loose with the distinctions between the Leader2Leader suite and its inclusion of the invention once it was ready. Tr. 10728:24.

McDay 2: Facebook's removal request

On the 5th day of trial, before Mr. McKibben returned to the stand for a second day of Facebook questioning, Mr. Rhodes asked the court to REMOVE the year 2000 Leader graphics designs from the jury binders because Facebook had made a mistake and included way too much stuff. These documents were practically the entire contents of the binder.

Such a mistake on such an important topic by a reputable law firm like Cooley Godward LLP is remarkable. Nine pages of the trial transcript are devoted to this request. Tr. 10740:7-10749:3.

Leader's objection of prejudice

Leader forcefully objected to the prejudice this would cause. Leader's attorney Phil Rovner argued that it would look like Leader was trying to hide something since Facebook had implied to the jury the day before that the entire contents had been provided together—as if the year 2000 engineering graphics documents had supplemented the 2009 Interrogatory No. 9.

The evident Facebook tactic was to infer by the juxtaposition of 2000 and 2009 documents, both containing the Leader2Leader logo, that the invention was actually ready in 2000. And therefore, that Mr. McKibben was lying about when the invention was ready.

To reinforce this inference, Facebook evidently wanted the jury to notice a physical change in the jury binder by the dramatic disappearance of the 2000 graphics designs from the binder. This would imply that Mr. McKibben did not want to perjor himself and wanted the graphics designs removed. The jury would not remember whose binder it was or who requested the removal. Since the bulk of the binder just disappeared while the jury was at lunch, the jury would naturally assume that Leader (and not Facebook) had asked that the documents be removed because they were not helpful to Leader.

Fig. 1: The Leader 2000 engineering graphic designs disappeared from Facebook's jury binder on Day 2 after Facebook consumed nine transcript-pages-worth of effort to perfect the removal. Leader objected strenuously to the prejudice caused by the jury thinking that Leader had requested the removal. The court approved the removal during the jury's lunch break. The jury's disbelief of Mr. McKibben's testimony appears to have emanated from their confusion surrounding the prejudice created by this jury binder episode. Tr. 10740:7-10749:3.

After 9 pages of transcript, the Court ordered the removal by the court clerks while the jury was at lunch.

Jury confusion

Software product graphics designs in 2000 do not prove that an invention exists underneath it. Only the software source code can prove that. However, Facebook's evident tactic was to confuse the jury.

Bottom line, Interrogatory No. 9 spoke about a 2009 Leader2Leader brand that was on the market and now includes the invention. The 2000 graphics designs were visions of a future Leader2Leader product. Speaking colloquially, pretty pictures are not the same as software source code. A lay jury can be excused for confusing nice graphics with completed software code.

Computer screen graphics are not source code

Web software designers know that such graphics designs are generally created long before they are reduced to practice. Such graphics are visions of the future product that help guide developers toward a common goal.

Even though Facebook had access to Leader's source code, they produced none of it. Their conduct shows that they did not have the proof, and resorted to jury binder tricks instead. In other words, they relied upon the jury being confused by the mere use of Leader2Leader graphics in 2000 as an inference that the source code was there too. A person of skill in software would know that this is an invalid leap of logic. Facebook proffered no expert testimony to give an opinion about these graphic designs.

Facebook played this jury confusion to a chilling effect.

Mr. Rhodes declares Leader's claim of prejudice "absurd and shocking"

When Leader's attorney said that Leader would "suffer the prejudice" if the documents are removed from the jury binder, Facebook's Rhodes exclaimed "I think that's an absurd and shocking argument. The issue is their claim chart in there. I missed it. It’s my error. I apologize." Tr. 10743:20-10744:4.

After consuming 9-pages worth of judicial resources on the subject of prejudice, Mr. Rhodes suddenly finds it absurd and shocking that Leader would claim prejudice? Mr. Rhodes was evidently signaling to the judge that unless Facebook got its way, this issue would be appealed due to a ringer infringement chart also stuck in the binder. This is a well-known "dark arts" trick.

Facebook became suddenly obsequious

Mr. Rhodes' eagerness to perfect the removal of the Leader graphics design documents is apparent in this exchange with the court:

THE COURT: How about I put the blame on you?
MR. RHODES: Yes.
THE COURT: So I say Mr. Rhodes realized this morning that he --
MR. RHODES: Absolutely.
THE COURT: -- included too much stuff.
MR. RHODES: Absolutely, Your Honor.

Tr. 10744:15-25.

Jury binder gutted on Day 2

Facebook got its way, their jury binder was gutted by the court clerks on Day 2 while the jury was eating lunch.

Facebook never used the Leader graphics designs as evidence.

Innuendo perfected.

* * *

SUMMARY: Leader v. Facebook trial analysis—American Innovation is on the line

Opinion: One blogger's perspective

1. Leader's lawyers dismantle Facebook's "schizophrenic" reply brief
2. Mark Zuckerberg used Leader white paper to build Facebook
3. Jury transforms disbelief into evidence
4. No evidence? No problem. Fabricate it.
5. Facebook's trial conduct
6. Facebook's "court room theater"
7. Facebook's "I'm tired" tactic
8. Missing Facebook Documents
9. Expert witness practices "dark arts"
10. Patent Office records disprove Facebook
11. Facebook's jury binder innuendo

Bottom Line: (1)The engine running Facebook is Leader's invention; (2) The trial court affirmed the prerogative of a jury to create evidence which the court says could be used to meet Facebook's "clear and convincing" burden of proof that Leader offered its invention for sale prematurely (for which there was no hard evidence)

Leader filed its opening appeal brief at the Federal District Court of Appeals on July 27, 2011. See Leader Opening Appeal Brief, also at Leader.

Leader argues that Facebook failed to prove by "clear and convincing evidence" that Leader offered its invention for sale prematurely. Leader says that would have been impossible since it was not perfected until a few days before the patent was filed. Leader argues that the only way Facebook could have proven that was to show evidence in Leader's source code.

Facebook showed no source code, no expert witness testimony, no testimony from Leader's engineers, and no testimony from the recipients of the alleged offers. Leader said that its programmer source code notes prove Facebook's claims are wrong. The record shows that Facebook sandbagged Leader with numerous "dark arts" tactics. These tactics included the late filing of a new early commercial activity claim, after the close of discovery, just after Judge Stark took over the case from Judge Farnan only a few months before trial, and after it was too late procedurally to be able to introduce its source code as proof. Judge Stark used his "judicial discretion" to allow the new "on sale bar" claim over Leader's objection of prejudice.

New evidence was created by the jury

Instead Facebook relied solely on discrediting inventor Michael McKibben in the eyes of the jury. The trial court permitted the jury to transform this "evident finding" of disbelief into "affirmative evidence" that the “opposite” of Mr. McKibben’s testimony was the truth instead. In other words, the trial court affirmed a jury’s prerogative to create new evidence in the jury room. Opinion, pp. 51-52.

This blog's analysis of Facebook's trial conduct focuses on Facebook's attempts to withhold Facebook founder Mark Zuckerberg from testifying, discovery delays, lost documents from 2004/2005, court room conduct, fabrication of evidence, sandbagging of Leader witnesses, and the bad science of Facebook's expert witness, Dr. Saul Greenberg.

Where the playing field was level, Leader won

The trial record is a study in stark contrasts. On the issues that Leader won, a sound trial process occurred. Leader proved, in three days of trial in a "battle of the experts" where much evidence was presented on both sides, that Facebook "literally infringes" Leader's U.S. Patent No. 7,139,761, and that no published prior art exists.

For on sale bar, new evidence and novel law were created in the jury room

In stark contrast, on the sole technical issue that Leader lost, namely "on sale bar," Facebook presented no evidence. Instead, it relied solely on confusing the jury into disbelieving Mr. McKibben's testimony. Then, contrary to its own jury instructions and the law to discard evidence not believed, the trial court permitted the jury (actually said "there is nothing impermissible") to create new evidence by transforming Mr. McKibben's disbelieved testimony into the ostensible opposite of whatever he testified. See Jury Instruction1.7; See also Opinion, p. 52.

In the American jury system, the jury is the "trier of fact." The jury has no legal prerogative to create new facts. The jury is bound to the facts at hand. A court has no legal prerogative not to follow its own jury instructions, as occurred in this "on sale bar" opinion. Indeed, the court said this to the jury:

"You must make your decision based only on the evidence that you saw and heard here in court. Do not let rumors, suspicions, or anything else that you may have seen or heard outside of court influence your decision in any way.

The evidence in this case includes only what the witnesses said while they were testifying under oath (including deposition testimony that has been played or read to you), the exhibits that I allowed into evidence, and any facts that the parties agreed to by stipulations (which I will tell you about as part of these instructions).

Nothing else is evidence. The lawyers' statements and arguments are not evidence. Their questions and objections are not evidence. My legal rulings are not evidence. My comments and questions are not evidence. The notes taken by any juror are not evidence. . .

Make your decision based only on the evidence, as I have defined it here, and nothing else." Jury Instruction 1.3 (emphasis added).

What is the opposite of a (dis)belief anyway?

The law requires hard evidence, not mere (dis)beliefs. For example, if Mr. McKibben had testified that the fact was "A" and the jury disbelieved him, what would they have then concluded? That it was "Z," but what about "B" or "C" or "D" or "E" or "F" or "G" or "H" or "I" or "J" and so on? Then, there is also the possibility of "AA" or "AB" or "BB" or "BC" or DE," or what about "WX" or "YZ" and so on? The notion of a jury's belief as opposite affirmative evidence of it's disbelief of other evidence is misguided. This is why the law requires hard evidence, not merely opposites of (dis)belief.

Nowhere in the jury instructions did the trial court tell the jury that the opposite of testimony is evidence. Specifically, an "evident finding" of "affirmative evidence" that the opposite of Mr. McKibben's testimony is evidence was out of bounds. Opinion, pp. 51-52. Indeed, the trial judge stated specifically that "My legal rules are not evidence." However, his ruling that an ostensible opposite of testimony is affirmative evidence explicitly breaches his own instruction.

In any event, the record shows no inconsistency in Mr. McKibben's testimony. Instead, it reveals a group of Facebook attorneys who pulled out all the stops to confuse a jury with "dark arts" snippets of this and that, all taken out of context. Without source code evidence, to pass off Facebook's trial record for on sale bar as "clear and convincing" defies logic.

American innovation is on the line

If the Facebook on sale bar verdict is not overturned, this convoluted "opposite of disbelief" ruling will have a chilling effect on U.S. Courts. Unscrupulous trial lawyers will do everything they can to smear any witness from whom they wish to elicit "opposite" evidence. American inventors will be specially targeted. "Dark arts" attorneys will do anything they can get away with to make the inventor look bad in front of the jury. This result could be devastating to the motivation of inventors who may choose not to file patents if this is what they have to look forward to in protecting their inventions. In such a circumstance, the courts themselves would become a deterrent to American innovation.

The trial court's affirmation that fabricated "opposite" evidence was "sufficient" for Facebook to meet its "clear and convincing" standard of proof is an innately flawed application of the law.

* * *

2. Jury transforms disbelief into evidence

Opinion: One blogger's perspective

With regard to early commercial activity, the jury based its finding on evidence it created—a potentially ruinous precedent if not overturned on appeal; sets the stage for inventor smear campaigns

Where the playing field was even, Leader Technologies beat Facebook. Facebook "literally infringes" Leader's patent on 11 of 11 claims and there is no published prior art. Much evidence and expert testimony was provided on both sides in a three-day "battle of the experts" for this part of the trial. Put simply, the engine running Facebook is Leader’s invention. See Leader Opening Appeal Brief, also at Leader.

However, where the playing field was not even, Facebook confused the jury and won a verdict on a technicality called "on sale bar." This concept is so esoteric that we’ll just call it "early commercial activity." The "on sale bar" law says that an inventor cannot offer his patent for sale more than twelve months before the patent application is filed. This claim was added to the case after the close of discovery over Leader's objection of prejudice, preventing Leader from being able to prepare its defenses.This "win" by Facebook "invalidated" Leader's patent for the purposes of this trial (but not for other trials). See Facebook's trial conduct.

Leader is asking the Federal Circuit Court of Appeals to overturn the early commercial activity verdict for lack of evidence and for a misinterpretation of the law; the court permitted disbelieved testimony to be transformed into "affirmative evidence" that the ostensible opposite was true. Op.cit.

Disbelieved testimony was transformed into new evidence

The trial court Opinion stated that it was the "evident finding" of the jury that inventor Michael McKibben's testimony was not credible, and that "[t]here is nothing impermissible" in allowing this mere disbelief to be transformed into "affirmative evidence" that the opposite of his testimony is true. In other words, McKibben said A was true, so the jury was permitted to assume affirmatively that Z was true instead. Opinion, pp. 51-52, JA-000054-000055.

The legal standards of proof in this case were distinguished among: (1) beyond a reasonable doubt, (2) clear and convincing, (3) a preponderance. Amazingly, the trial court declared that the opposite of disbelieved testimony alone was "clear and convincing." Op.cit.; See Jury Instruction No. 1.11.

Facebook had a "clear and convincing" burden to prove early commercial activity. In keeping with the law, the jury was instructed to analyze the alleged offers with an element-by-element comparison of the product alleged to have been offered for sale against the claims of the invention. See Jury Instruction 4.7.

Software source code was required

For a software patent, an element-by-element analysis must necessarily be done with software "source code" since there is no other way to prove if the gears and pulleys of the unseen code are present. Facebook showed no Leader source code and presented no expert testimony, even though they were given full access.

So how did the jury reach this verdict?

According to the trial court's Opinion, the opposite of two items of inventor McKibben testimony were transformed into an alleged "inventor's admission" that Leader's brand name "Leader2Leader" embodied all the elements of the patent in 2002 (he said that it did not, as did co-inventor Jeff Lamb). Those were combined with a third item—a 2009 interrogatory stating that in 2009 "Leader2Leader® powered by the Digital Leaderboard®" practiced the invention. This answer did not address any time frame prior to 2009, yet the trial court made a conclusory statement that it did. That statement is proved wrong by a simple reference to the United States Patent and Trademark Office's trademark database. Opinion, p. 52, JA-000055; See also Patent Office records disprove Facebook.

Surprisingly, instead of the trial court following its own instruction to discard any testimony not believed, the court permitted the jury to use that disbelief as "affirmative evidence" that the opposite was true—that Leader2Leader in 2002 must have practiced the invention—despite there being no source code proof or expert testimony to that effect.

Patent law on early commercial activity—35 U.S.C. §102(b)

The law states:

"the invention must be ready for patenting. That condition may be satisfied in at least two ways: by proof of reduction to practice before the critical date; or by proof that prior to the critical date the inventor had prepared drawings or other descriptions of the invention that were sufficiently specific to enable a person skilled in the art to practice the invention." Pfaff v. Wells Elecs., 525 U.S. 55, 67-68 (1998).

Consistent with the law, the jury instructions stated:

"Facebook must prove by clear and convincing evidence that a product that met all the limitations of the asserted claims was ready for patenting and was offered for sale more than a year prior to the effective filing date. Jury Instruction 4.7.

"it is your duty and privilege to believe the testimony that, in your judgment, is most believable and disregard any testimony that, in your judgment, is not believable." Jury Instruction 1.7.

Facebook presented no proof of either Pfaff condition; they presented no source code and no engineering drawings or descriptions. Facebook provided no expert opinion on either Pfaff condition. In addition, they presented no testimony from the recipients of the alleged offers for sale. No evidence that could even remotely qualify as sufficient to enable a person of skill was presented.

The Trial Court Opinion

Instead of looking to the law for its guidance, the trial court Opinion looked to novel evidence and law constructed in the jury room:

"the Court believes that the jury's evident finding that Mr. McKibben was not testifying credibly does, under the circumstances of this case, constitute affirmative evidence that the invention was ready for patenting prior to the critical date"

"the combination of [1] Mr. McKibben's trial testimony (which the jury found non-credible), plus [2] his seemingly conflicting deposition testimony (presented to the jury at trial), plus the [3] interrogatory responses (which can reasonably be interpreted as an admission that the invention was ready for patenting prior to the critical date) that, together, are "sufficient" to satisfy Facebook's [clear and convincing] evidentiary burden.” 

Opinion, pp. 51-51, JA-000054-000055 (emphasis added).

The trial court Opinion contradicts its own jury instructions and the law.

1. After instructing the jury to disregard any testimony not believed, the court not only did not discard that testimony, but it allowed it to be transformed into an ostensible opposite fact.
   
   
2. The trial court then actually cited this not disregarded, new contra-testimony evidence as the corroboration for a third item of ostensible evidence, namely a 2009 false marking interrogatory—which cannot be an admission about Leader2Leader in 2002 because the interrogatory cites to registered trademarks that were not issued until 2003. See Patent Office records disprove Facebook.

To be clear, the three items of ostensible "clear and convincing" evidence were, according to the trial court ("N/A" = not applicable):

#	Trial court's description of the "clear and convincing" proof	If not believed	Disposition of the evidence according to the law
1	McKibben deposition testimony	Discard	N/A
2	McKibben trial testimony	Discard	N/A
3	Interrogatory No. 9	N/A	N/A
.	Conclusion	.	No proof

All three elements of Facebook's ostensible "clear and convincing" evidence regarding early commercial activity are discredited. Therefore, no evidence of early commercial activity was presented.

"An ill-wind blows no good"

A Facebook "win" on the early commercial activity verdict would blow an ill wind across the U.S Courts. It would set a ruinous precedent that would encourage attorneys to double-down on "dark arts" against opponents to create new facts from opposites. Infringers would be encouraged to dispense with hard evidence per Pfaff, Group One and Linear, and would focus instead on smear tactics to manipulate the evidence in any way that would make the inventor look bad.

Facebook did not even try to meet this "clear and convincing" burden of proof. Instead, they resorted to attorney tricks and trial theater.  See Facebook's trial conduct; See also Expert witness practices "dark arts;" Missing Facebook Documents; No Evidence. No Problem. Fabricate it.; Facebook's "I'm tired" tactic; Facebook's "court room theater." 

Fig. 1: The witness testified that the glass was empty. However,
under the trial court's theory in this case, if the jury does not
 believe the witness, then the jury is permitted to create
"affirmative evidence" of the ostensible opposite. However,
what is  the opposite of an empty glass? Source: Fotolia.com

Does a simple opposite even exist for most evidence?

Few items of evidence have only one opposite alternative, so the notion of "affirmative evidence" of the opposite cannot become an allowable evidentiary standard. For example, the witness might testify that the glass was empty. Under this trial court's theory of "affirmative evidence," if the jury disbelieves the witness, then they would conclude that the glass is full, i.e., the opposite of empty. However, the glass could also be half-full, one-quarter full, and so on. Other reasonable alternatives exist; therefore, the notion of “affirmative evidence” is innately flawed.

Smear campaigns

Facebook's recent conduct shows that they have no hesitation about organizing smear campaigns against opponents. Recently, after having its surreptitious activities exposed, Facebook admitted hiring a prominent PR firm to wage a "ham-handed" smear campaign against Google. Wired, May 12, 2001. If infringers become emboldened by a Facebook win in this case, attacks on inventors will become standard operating procedure.

Common sense

Also, plain old common sense  dictates that any case that turns on only three items of suspect evidence cannot meet the "heavy burden" of clear and convincing proof. 

Implications of this appeal on the administration of justice in the United States if  Facebook's "dark arts" prevail

1. Appeals will be meaningless—The appeal of any future patent case that wins by discrediting the inventor to the jury will be meaningless. Without evidence, the role of the appeals court in these cases will simply be reduced to the role of critic: How did the jury feel? Why did they disbelieve the inventor?
   
   
2. "Dark arts" will overtake the process—Attorney "dark arts" will overtake trial preparation. The hypothetical precedent in this case would open all lawsuits to the possibility that if attorneys don’t have the evidence, they will focus on dark tricks of the trade and jury deception.
   
   
3. Trial theater—Boston Legal-style court room theater will run amok as unscrupulous attorneys ply their trade on hapless juries to discredit truth-tellers with smear tactics instead of hard evidence.
   
   
4. The art of appearing sincere will trump evidentiary substance—Every nervous witness will be characterized as a liar and every pause will be misconstrued as withholding evidence. The art of looking good will overrule evidentiary substance.
   
   
5. Activist juries will create evidence from opposites—In addition to the jury's current role as the "trier of fact," they will assume a new role as the "creator of opposite facts."
   
   
6. Attacks on inventors—the creative engines of the American economy—For patent cases, infringers will undoubtedly focus on attacking the credibility of the inventor—further perfecting Facebook's "dark arts" success. Smear campaigns will endeavor to create ostensible opposite facts (should Facebook prevail in this appeal).

* * *