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, September 16, 2011

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?
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.

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1 comment:

  1. Knowledgeable sources report that the judge allowed the attorneys to poll the jury after the split verdict. Leader's attorney Paul Andre asked the jury if they did an element-by-element test pursuant to the jury instructions. The jury said they did not. When asked what evidence they used to make their on sale bar verdict, they said they had no evidence other than a belief that McKibben was not testifying truthfully. As Leader stated in its appeal brief, disbelief is not evidence. If Facebook were to prevail here, every nervous witness or misconstrued gesture would become fresh meat for unscrupulous attorneys. Jury disbelief MUST be based on clear and convincing evidence and not mere speculation, innuendo and surmise.

    Unfortunately, the judge told the attorneys they could not use what they learned from the jury in that meeting. What is puzzling is that the judge did not overturn the jury on this on sale bar decision having heard himself that they jury did not base their verdict on any evidence.