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.

Thursday, January 26, 2012

How Facebook tricked the jury

OPINION: One blogger's perspective

Facebook doctored evidence as the basis for their only "win" in the patent infringement case Leader v. Facebook which is now on appeal at the Federal Circuit

January 26, 2012—The 3 min. 22 sec.YouTube video below summarizes how Facebook experimented with a 70-person Delaware focus group to confuse the jury with innuendo dressed up to look like evidence of "on sale bar." As a matter of law, Facebook's "victory" cannot stand since it is founded on doctored evidence—a 60%-altered Interrogatory No. 9. (See mock trial Comments in "Facebook's 'clear and convincing' burden of proof in Leader v. Facebook".) Here are links to the two trial documents that comprise Interrogatory No. 9: (1) Doc. No. 627-23 and (2) Doc. No. 627-24.


Lessons in fooling a mostly blue collar jury

Do you find it hard to believe that Facebook's Cooley Godward attorneys would doctor evidence, much less make it the centerpiece of their on sale bar attack? See for yourself at these blog entries:
Facebook's prized "evidence" was a trick. See also No evidence? No problem. Fabricate it.; Missing Facebook Documents; Facebook's jury binder innuendo. Follow other related link in this blog's Table of Posts (on right).
The revelation that Facebook paid 70 people almost $500 each to test how best to fool the jury with pseudo-evidence is further proof that Facebook had no evidence, and instead, resorted to attorney games—"dark arts" that are so destructive to the public's confidence in our legal system.


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Screen captures of the animation slides above (click on any one and the Blogger slide viewer will enable you to view each slide at your own pace):

Slide 1 of 23
Leader v. Facebook | How Facebook tricked the jury with attorney-altered evidence and trial theater

Slide 2 of 23
Leader v. Facebook | How Facebook tricked the jury with attorney-altered evidence and trial theater - Part I

Slide 3 of 23
Leader v. Facebook | Facebook treated Interrogatory No. 9 as an 'inventor's admission - Disregarding the illogical association of a 2009 question to events in 2002--which confused the jury...

Slide 4 of 23
Facebook altered this evidence (Interrogatory No. 9)

Slide 5 of 23
Less than 40% of Leader's answer was shown to the jury. Leader objected. The district court overruled

Slide 6 of 23
Possibilities of error lie in trusting to a fragment of an utterance without knowing what the remainer was. Wigmore, Evidence, 2rd. ed. (on the doctrine of completeness. Professor Wigemore is an often-cited legal authority.

Slide 7 of 23
All evidence in support of such conduct is the 'fruit of the poisonous tree. Nardone v. United States, 308 US 338 (Supreme Court 1939)

Slide 8 of 23
Leader v. Facebook | How Facebook tricked the jury with attorney-altered evidence and trial theater - Part II

Slide 9 of 23
Facebook based their 'on sale bar' attack on attorney-altered evidence

Slide 10 of 23
60% of Interrogatory No. 9 was hidden from the jury

Slide 11 of 23
Facebook then supported their doctored evidence with innuendo and trial theater

Slide 12 of 23
Innuendo is not evidence.

Slide 13 of 23
In re Bose Corp (Fed. Cir. 2009) 'There is no room for speculation, inference or surmise ... any doubt must be resolved against the charging party [Facebook].

Slide 14 of 23
On May 1-2, 2010 Facebook tested their trial theater tricks with 70 unsuspecting Delaware citizens at the Riverfront Center, Wilmington, Delaware.

Slide 15 of 23
Clear and convincing evidence requires hard facts. Colorado v. New Mexico (Supreme Court 1984)

Slide 16 of 23
Slide 14 - Facebook offered no hard evidence. (1) No source code, (2) No element-by-element test, (3) No third party testimony, (4) No UCC commercial terms test, (5) No expert testimony, (6) No engineering records, (7) No programmer testimony, (8) No secrecy 'deeds' test, (9) No defenses for dispositive proofs: (9a) 'evaluation only' NDA clauses, (9b) registered trademark dates, (9c) experimental testing evidence, (9d) 'no legal effect' NDA clauses, (9e) no 'buyer/seller' relationships clause [WPAFB], (9f) 'no reliance' NDA clauses, (9g) 2009 present tense answer, and (9h) admission that source code was needed [Facebook's Cooley Godward attorney Mark Weinstein's statement to the judge six months before trial].

Slide 17 of 23
Was the jury confused by innuendo plus trial theater?

Slide 18 of 23
Was the jury confused by innuendo plus trial theater? Yes.

Slide 19 of 23
Does well-rehearsed trial theater satisfy the 'clear and convincing' evidence standard?

Slide 20 of 23
Does well-rehearsed trial theater satisfy the 'clear and convincing' evidence standard? No.

Slide 21 of 23
Leader v. Facebook | How Facebook tricked the jury with attorney-altered evidence and trial theater. The End.

Slide 22 of 23
For more information, go to: facebook-technology-origins dot blogspot dot com
Add caption

Slide 23 of 23
Leader v. Facebook | How Facebook tricked the jury with attorney-altered evidence and trial theater


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