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.

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