Origin of Facebook's technology?

How Facebook tricked the jury

2012-01-26T17:16:00.000-08:00

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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Facebook's prized "evidence" was a trick

2012-01-15T18:46:00.000-08:00

OPINION: One blogger's perspective

Facebook concealed over 60% of Interrogatory No. 9; breached the completeness doctrine (Fed. R.Evid. 106)

January 15, 2012 – According to the trial court, Facebook’s lone trial victory for public disclosure/on sale bar in the Leader v. Facebook patent infringement trial was founded on Interrogatory No. 9. The judge allowed Facebook to introduce this evidence over Leader’s objections and the Federal Rules of Evidence 106 (completeness). Here’s what the jury was given, contained in the jury binder sleight of hand: Doc. No. 627-23; Doc. No. 627-24; See Facebook's jury binder innuendo; See also Fig. 1 below.

Facebook's pleadings averaged 24 double-spaced lines per page. Counting the six Interrogatory No. 9 pages between the captions and the signatures, and not counting omitted pages, Facebook redacted 60% of the content.

Facebook's public disclosure/on sale bar argument turned on Interrogatory No. 9 as an alleged "inventor's admission" that the Leader2Leader technology in late 2002 contained the same technology as discussed in the interrogatory. Opinion 45-55. An "interrogatory" is a pre-trial question put to a person who answers under oath. Facebook's attorney Michael Rhodes admitted that Facebook relied on this altered interrogatory as "a foundation for the on-sale issue." Tr. PageID #: 10421:10-11.

Fig. 1 - Facebook concealed more than 60% of Interrogatory No. 9, which their Cooley Godward attorney Michael Rhodes admitted to the trial court was a "foundation" for their on sale bar argument. Professor Wigmore, an often-cited legal scholar, admonishes against allowing such doctored evidence. See John Henry Wigmore, Encyclopedia Britannica Online. This figure is an animated GIF (6MB). Interrogatory No. 9 is mocked up with textual greeking to approximate a complete interrogatory, consistent with other full interrogatories in evidence. Here are the doctored Interrogatories No. 9 as shown to the jury by Facebook: Doc. No. 627-23; Doc. No. 627-24.

The trial court's allowance of this dramatically altered interrogatory is a clear breach of the Doctrine of Completeness (founded on the Federal Rules of Evidence Rule 106). The problems associated with Facebook's concealment is best described by legal scholar Professor John H. Wigmore:

"Possibilities of error lie in trusting to a fragment of an utterance without knowing what the remainder was."
Wigmore, Evidence, 3rd ed.
(on the doctrine of completeness)

Facebook concealed more than 60% of the contents of Interrogatory No. 9 from the jury.

Facebook's version of Interrogatory No. 9 was the foundation of their on sale bar argument.

Remarkably, the foundation of Facebook's on sale bar argument is a single interrogatory in which over 60% of its content was concealed from the jury over Leader's objection. All of Facebook's other evidence keys off this interrogatory. Surely a fragmented interrogatory cannot survive the "heavy burden" of clear and convincing standard of proof.

The legal standard of "clear and convincing" evidence is required for Facebook to prove its case. Without it, Facebook cannot win legally. Doc. No. 601 Final Jury Instructions, No. 4.7 ("clear and convincing evidence").

Facebook's "heavy burden" of "clear and convincing" evidence was affirmed recently by the US Supreme Court. See Microsoft Corp. v. i4i Ltd. Partnership, 131 S. Ct. 2238 (Supreme Court 2011) at 2247 ("a defendant raising an invalidity defense bore "a heavy burden of persuasion," requiring proof of the defense by clear and convincing evidence"); Id. at 2248 ("the burden of proving prior inventorship 'rests upon [the defendant], and every reasonable doubt should be resolved against him,' without tying that rule to the vagaries and manipulability of oral testimony . . . [a]nd, more than 60 years later, we applied that rule where the evidence in support of a prior-use defense included documentary proof—not just oral testimony").

Facebook concealed Leader’s written objections, thus stripping away the context for Interrogatory No. 9

The 2009 interrogatory asked what current Leader products and services practice (present tense) the invention. McKibben answered "Leader2Leader® powered by the Digital Leaderboard® engine is covered by the '761 Patent." Doc. No. 627-23 (DTX 0963); Doc. No. 627-24 (DTX 969). This question did not ask about Leader history, yet Facebook asserted at trial that Leader should have expanded the answer to include times past. However, Leader had no such burden. This assertion is akin to asking you what you are wearing, but then arguing that you should have expanded your answer to include everything you have ever worn.

More Facebook obfuscation

Facebook's counsel contradicted himself. He first asked the jury "He [McKibben] never showed you the product, did he? And he didn’t say it has this one or this one or this one." However, this implication of a burden shift contradicted his earlier statement that “my burden is higher." Tr. PageID# 11510:20-22; 11528:9-16; 11497:5. Such contradictory arguments (that easily confuse a jury) are well-known obfuscation, sometimes called the "dark arts." See Facebook’s' trial conduct; Facebook's "court room theater"; Facebook's "I'm tired" tactic; Missing Facebook Documents; Facebook's jury binder innuendo; Expert witness practices "dark arts".

“[C]ounsel's strategy consisted of efforts to obfuscate, cover-up, and subvert evidence.” Advanced Display Systems, Inc. v. Kent State University, 212 F. 3d 1272 (Fed. Cir. 2000) at 1288.

Misrepresented the legal standard. E-Pass Technologies, Inc. v. 3Com Corporation (Fed. Cir. 2009) at II.

“[D]eliberately obfuscated their claim.” Wright v. United States, 728 F. 2d 1459 (Fed. Cir. 1984) at 140.

Facebook's burden never shifted to Leader

The U.S. Supreme Court recently confirmed Facebook's "clear and convincing" burden of proof, citing 30 years of Federal Circuit precedent:

"[A] patent is valid and imposes the burden of proving invalidity on the attacker. That burden is constant and never changes and is to convince the court of invalidity by clear evidence."

"[A]n infringer who assails the validity of a patent fair upon its face bears a heavy burden of persuasion, and fails unless his evidence has more than a dubious preponderance" (emphasis added).

"[T]he burden of proving [on sale bar] invalidity [is] on the attacker [Facebook]. That burden is constant and never changes" citing Judge Rich, a principal drafter of the 1952 Patent Act (emphasis added).

Microsoft v. i4i at 2243, 2245; Supra.

Microsoft v. i4i and Leader v. Facebook have similar fact patterns

In Microsoft v. i4i, Microsoft alleged that an i4i product with the brand name "S4" was sold more than 12 months before the priority date. i4i did not dispute that, but its two inventors testified that S4 did not contain the invention at that time. The testimony of the two inventors was all Microsoft had since the S4 source code had been destroyed years before. The jury ruled that Microsoft had not met its clear and convincing burden of proof to overcome the inventor's testimony.

In Leader v. Facebook, Facebook alleged that a product with the brand name "Leader2Leader" was sold more than 12 months before the priority date. Leader did not dispute that, but its two inventors testified that Leader2Leader did not contain the invention at that time. Unlike i4i's absence of source code, Facebook was given access to the full Leader source code. Even so, Facebook did not present any of that source code at trial to support its on sale bar accusation. Instead, Facebook presented Interrogatory No. 9, and reinforced it with a smattering of emails and documents that mentioned the Leader2Leader brand name.

The Microsoft v. i4i jury concluded that Microsoft had not met its burden of proof by merely showing that a product with the brand name "S4" had been sold. In other words, proof requires more than inferences and allegations.

The Leader v. Facebook jury, on the other hand, decided that mere reference to a brand name "Leader2Leader" was sufficient inference proof that the brand must have contained the invention, even though Facebook presented no source code to prove it.

The fact patterns are similar in that both Microsoft and Facebook relied largely on the testimony of the two inventors in each case for their on sale bar evidence. Both Microsoft and Facebook argued that mere reference to a brand name was sufficient proof. Neither i4i nor Leader denied use of the brand name more than 12 months before the critical date. Each of the two inventors for i4i and Leader testified that their respective brand names S4 and Leader2Leader did not embody their inventions more than 12 months before the critical date. Neither Microsoft or Facebook presented any source code evidence to prove their accusations. Both Microsoft and i4i were found to infringe.

What is glaringly different is the fact that while Microsoft had no i4i source code, Facebook did have Leader's source code, but did not present any of it at trial.

What is also different is the outcome of the cases regarding on sale bar. The Microsoft v. i4i jury ruled that Microsoft had failed to prove on sale bar by clear and convincing evidence. In other words, it found that mere references to brand names are not proof of the kind needed to meet the "heavy burden."

Surprising, with arguably stronger facts than i4i's (Facebook had Leader's source code), the Leader v. Facebook jury ruled that Facebook had met its "clear and convincing" burden for on sale bar—even though they used only references to a brand name; effectively replicating Microsoft's no-hard-proof argument.

Reference to brand names are not proof of innovative source code

The main apparent difference between these cases, as was highlighted by the trial judge's Opinion, is this Interrogatory No. 9, and the smattering of "Leader2Leader" references in documents and emails ushered in behind it to reinforce the innuendo. Leader argues that brand name references are not the kinds of hard evidence required to meet Facebook's clear and convincing burden of proof. The Microsoft v. i4i trial court, Federal Circuit, and now the US Supreme Court appear to agree with Leader that mere citing of brand names are not enough.

Facebook confused the jury with a self-styled "substantial" evidence standard instead of actual "clear and convincing" evidence

Facebook argues that its evidence is "substantial." However, substantial volume is not the criteria. That it might substantially support a dubious theory is also not the criteria. Indeed, Facebook's "evidence" merely supports their presumptions founded on Interrogatory No. 9--that the 2009 interrogatory admitted that the brand name Leader2Leader, for all time (and especially in 2002), embodied the invention. Leader's two inventors testified that it did not, and could not, because it was not ready. Without source code to prove otherwise, or at least very detailed engineering documents showing the Claim 1 tracking component, context component and storage component, nothing in evidence proves Facebook's theory. As a result, Facebook's "evidence" is nothing more than attorney trickery dressed up to look like evidence.

Was Facebook’s fragmented interrogatory dubious?

Facebook presented 60%-redacted Interrogatory No. 9 as a part of its jury binder hocus-pocus. The trial court overruled Leader's objection to its admissibility. Tr. PageID #: 10421:7-8.

What was redacted? Facebook concealed Leader's many objections to the questions, and especially that they were vague and ambiguous. Hindsight says this objection was prophetic, given Facebook's subsequent effort to re-purpose the interrogatory. Leader also objected to use of the interrogatory outside the context of expert testimony. Tellingly, Facebook presented no expert testimony on the subject of public disclosure/on sale bar.

Even the trial court was ambiguous as to whether Facebook's evidence was "clear and convincing." The trial court wrote only that "there was evidence to support a finding." Opinion 55. The law is clear that the mere existence of some evidence is not enough to support the clear and convincing standard.

Evidence in legal proceedings is redacted when: (a) it is not relevant to the case, (b) protects someone’s privacy, or (c) is under a protective order. None of these reasons apply to the interrogatory. Instead, Facebook concealed Leader's objections to the interrogatory that would have allowed the jury to view the statements in their full context.

Again, Facebook's redactions beg the question about what was redacted and how did it prejudice Leader? Current news about Martin Luther King Jr. illustrates this point about the impact of redaction on meaning. MLK's family complains that a redacted quote on the Martin Luther King Jr. National Memorial makes him sound arrogant. While reasonable minds can disagree whether it does or doesn't, the family considered it an unacceptable truncation of a larger thought. MLK did not say he was a drum major, but was reflecting on that moniker if others considered it applicable to him.

Redacted MLK statement:
"I was a drum major for justice, peace and righteousness."

Original MLK statement:
“If you want to say I was a drum major, say I was a drum major for justice, peace and righteousness. ”

Clearly, context matters. Facebook concealed ALL of Leader's objections to the request, and without this full context for Interrogatory No. 9, common sense alone says that Facebook led the jury down a slippery slope.

Dubious evidence creates dubious conclusions

Without proper context, Facebook's 60%-redacted Interrogatory No. 9 is dubious. Such dubious evidence can only result in an equally dubious jury conclusion.

As a result, the "additional" evidence cited by the trial court in its footnote to support Facebook's obscured Interrogatory No. 9 are equally the fruit of a poisoned tree of evidence. Opinion 55.

Facebook’s 60% redaction created a "false notion"

Professor Wigmore said:

"To look at a part [of an utterance] alone would be to obtain a false notion of the thought."
Wigmore, Evidence; United States v. Corrigan, 168 F. 2d 641 (1948) at 645 (emphasis added).

The dangers inherent in Facebook's concealment of the proper context are easily illustrated by use of Facebook’s own remaining words in the interrogatory as a hypothetical example.

Facebook asked about Leader products and services:

Fig. 2 - Facebook's unaltered Interrogatory No. 9. Facebook asks Leader about their products and services. Doc. No. 627-23.

Or, did Facebook ask for a patent claim chart (redacted)?

Fig. 3 - Facebook's Interrogatory No. 9--REDACTED (to intentionally alter its context and meaning). This is now a request for a patent claim chart, and not for information about products and services. This simple example shows how redactions can be misleading. Doc. No. 627-23.

In this example, Facebook asked in Fig. 2 for a statement about Leader’s products and services. However, the hypothetical Fig. 3 redaction appears to ask not about products and services, but about a patent claim chart. The hypothetical redaction in Fig. 3 makes the request ambiguous. This simple example using all-Facebook words further illustrates the sagacity of Professor Wigmore’s admonition against tampering with evidence. The error in allowing Facebook's doctored version of Interrogatory No. 9 is evident.

Facebook breached the completeness doctrine by introducing a doctored Interrogatory No. 9

In overruling Leader's objection, the trial court prevented the jury from obtaining a full contextual view of Interrogatory No. 9, including Leader's many objections. The well-settled doctrine of completeness is intended to prevent just the sorts of prejudices suffered here.

"Rule 106. Remainder of or Related Writings or Recorded Statements. When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it." Federal Rules of Evidence Rule 106.

"[F]airness dictates that the balance be received so that the jury will not be misled." United States v. Rubin, 609 F. 2d 51 (1979) at 63.

"The rationale of the doctrine of completeness has been stated by Professor Wigmore: 'To look at a part [of an utterance] alone would be to obtain a false notion of the thought. * * * One part cannot be separated and taken by itself without doing injustice, by producing is representation'; and again, 'possibilities of error lie in trusting to a fragment of an utterance without knowing what the remainder was'; consideration of the whole is needed 'to avoid the danger of mistaking the effect of a fragment.' See Wigmore, Evidence, 3rd ed., §§ 2094, 2104, 2113, 2119, 2120." United States v. Corrigan, 168 F. 2d 641 (1948) at 645 (emphasis added).

The trial court's rationale in allowing Facebook to introduce a heavily-doctored (and so evidently prejudicial) Interrogatory No. 9 is baffling. Without Interrogatory No. 9, Facebook's on sale bar argument dies.

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Facebook's "clear and convincing" burden of proof in Leader v. Facebook

2011-12-25T03:29:00.000-08:00

OPINION: One blogger's perspective

If Facebook met its burden, an ill-wind blows over innovation; offer-blocking NDA language is just one piece of evidence fatal to Facebook

December 26, 2011—All the appeal briefs are all in. The next step in Leader v. Facebook is the oral argument in this patent infringement trial now on appeal at the Federal Circuit Court of Appeals.

Understanding Facebook's trial arguments are like peeling an onion. The sealed trial arguments are finally seeing the light of day and are as discombobulated as they seemed. Leader's favorable verdicts on infringement of 11 of 11 claims and no prior art are unlikely to be changed given the volumes of evidence on both sides. Put another way, the engine running Facebook is Leader's invention.

Facebook's lone trial victory for "on sale/public disclosure bar" cast a light on the unseemly underbelly of our jury system—it reveals how Cooley Godward attorneys intent on fooling a jury with "dark arts" can frustrate justice.The layers of this onion include: (a) a new federal judge’s first jury trial; (b) adding the on sale bar claim after the close of discovery, thus preventing Leader from being able to prepare its defenses; (c) a flip-flopping Facebook expert witness presenting bad science; (d) hocus-pocus with a jury binder; (e) exploiting jury confusion over esoteric and intertwined legal concepts; (f) testimony taken out of context; (g) inventor-bashing; (h) video snippet gaming; (i) questionable uses of a jury focus group; (j) missing documents; (k) no corroborating testimony; (l) no source code; and (m) obsequious counsel.

See Facebook's trial conduct.See also Facebook's "court room theater", Facebook's "I'm tired" tactic, No evidence? No problem. Fabricate it., Missing Facebook Documents, Expert witness practices "dark arts", Facebook's jury binder innuendo, Patent Office records disprove Facebook, Mark Zuckerberg used Leader white paper to build Facebook, and American Innovation is on the line.

Layperson's smoking gun?

In all of Facebook's machinations, is there a smoking gun from a layperson's perspective? The answer is yes. Leader NDAs (nondisclosure agreements, also known as confidentiality agreements). Facebook used the NDAs to mislead the jury as to their multiple purposes. In addition to confidentiality protections, Leader's NDAs had no-reliance clauses which are fatal to Facebook—clauses which the jury would not understand and the trial court missed as a matter of contract law.

According to Leader, they could not have offered the invention early because it did not exist prior to the filing of their provisional patent application. If Leader's story is true, then they must prove a negative. Proving a negative is always difficult. How do you prove you don't beat your children when there's evidence you got angry at them once? How do you prove you don't steal from your employer, when there's evidence that you once lost receipts in the wash? The "clear and convincing" standard is intended to stop innuendo from holding sway over the requirement for hard evidence. Therefore, Facebook's burden was to prove their accusations clearly and convincingly; beyond simply yelling "liar!

Nonetheless, it was not Leader's burden to prove that they did not offer the invention for sale. Instead, it is Facebook's "clear and convincing" burden to prove with hard evidence that the invention was offered for sale. Without such hard evidence, Facebook resorted to the "dark arts" to fool the jury with deceptive lawyering. See Leader's lawyer's dismantle Facebook's response brief, ¶2, "Muckraking."

Leader’s NDA’s trump all of Facebook's machinations. Facebook mocked these secrecy documents at trial—focusing the jury on the NDA dates on these signed promises as the only way to protect secrets (reminiscent of the Wizard of Oz's deception: "Pay no attention to that man behind the curtain."). Such NDA dates do not prove whether or not disclosures were made in any given meeting. Neither do they prove if verbal confidentiality agreements were in place, nor do they prove whether Leader used other means to protect secrecy, like need-to-know policies and the splitting of tasks. See U.S. v. Lange (deeds).[1]

Leader NDAs contained a "no-reliance" clause that is fatal to Facebook—the parties agreed that no offers for sale could be construed from their discussions. A lay jury unfamiliar with contract law can be excused for missing this, but the trial court should not have. Leader's post-trial arguments highlighted the no-reliance clause. It's basic contract law. Restatement (Second) Contracts § 21 (1981) (agreement not to be legally bound). That is, if knowledgeable parties agree that nothing they discuss will have any legal effect prior to entering into a written agreement, then that agreement blocks anything discussed from being construed as a commercial offer for sale. End of story. The on sale bar verdict is wrong as a matter of law.

Leader's NDA "no-reliance" clause blocked offers for sale contractually

While an NDA's main focus is secrecy, NDAs can contain other contractual elements, and Leader’s NDAs had a "no-reliance" clause that explicitly blocks offers for sale. It says (see also Fig. 4 below):

Table 1: Leader's NDA, Paragraph 5:
See WPAFB – Douglas W. Fleser NDA (no-reliance).
Leader JMOL, Doc. No. 627-09, ¶5;

See WPAFB – Vincent J. Russo NDA (no-reliance).
Id., Doc. No. 627-19, ¶5;

See WPAFB not a "'buyer/seller' relationship."
Id., Doc. No. 627-11, p. 17;

See Facebook's Hail Mary attempt to discredit the Vincent J. Russo NDA in its Red Brief. New "Phantom NDA" Debunked;

See The Limited – Len Schlesinger NDA (no-reliance).
Id., Doc. No. 627-20, ¶5.


Fig. 1 - Doc. No. 627-09 WPAFB (Douglas W. Fleser) NDA #1 containing a "no-reliance" clause that blocks offers for sale contractually.	Fig. 2 - Doc. No. 627-19 WPAFB (Vincent J. Russo) NDA #2 containing a "no-reliance" clause that blocks offers for sale contractually.	Fig. 3 - Doc. No. 627-20 The Limited (Len Schlesinger) NDA containing a "no-reliance" clause that blocks offers for sale contractually.

Fig. 4 — Leader NDA ¶5—"No-reliance" clause (see also Table 1 above) where the parties agree not to be legally bound by their discussions prior to entering into a definitive agreement. In other words, they agreed in advance that nothing they discussed could have any legal effect prior to a definitive signed agreement. See Restatement (Second) of Contracts § 21 (1981)(agreement not to be legally bound). This no-reliance clause is contained in the multiple WPAFB and The Limited NDAs. In effect, the no-reliance clause mutes Facebook's on sale/public disclosure bar claim since the parties agreed that nothing they discussed could be interpreted as a contractual offer. The other Facebook accusation of an offer for sale was for Boston Scientific where a similar no-reliance agreement was in place. The other "evidence" is a couple of internal Leader emails about the first Boston Scientific meeting attended by Professor James P. Chandler—one of the world's foremost authorities on intellectual property whom Leader had engaged as counsel and a director. Facebook never challenged the Leader NDA "no-reliance" clauses. This is fatal.

Contracts (and contract offers) are a "meeting of the minds." They're situations where a "willing seller" and a "willing buyer" come to terms and form a binding relationship by the affirmative acts of the parties. If the parties choose, they can agree to exclusionary no-reliance NDA language like "nothing discussed shall have any legal effect" and "solely for evaluation" to explicitly avoid having anything discussed from being construed as an offer or a sale. Leader did that consistently, and no Facebook evidence disproves this uniform practice.

Congressional testimony dramatically refutes Facebook’s Hail Mary attempt to present Vincent J. Russo’s signed NDA as fabricated. Although Facebook claims that Mr. McKibben lied in saying that Mr. Russo was associated with WPAFB, Congressional testimony shows that Mr. Russo was indeed the Executive Director of the Aeronautical Systems Center at Wright-Patterson on April 2, 2001, a fact that Facebook could easily have confirmed. See New "Phantom NDA" Debunked.

The no-reliance clause in Leader's NDA says the parties are going to explore potential business relationships, but that nothing discussed can be construed as a sale, or even an offer for a sale (no legal effect) (even if numbers and terms are explored). In other words, until the parties have a signed contract, nothing they discuss is binding at any level of contract law. It appears the jury and the Court missed this matter of law completely.

See Group One, Ltd. v. Hallmark Cards, Inc., 254 F.3d 1041,1047, 59 USPQ2d 1121, 1126 (Fed. Cir. 2001) ("As a general proposition, we will look to the Uniform Commercial Code ('UCC') to define whether . a communication or series of communications rises to the level of a commercial offer for sale.") citing MPEP 2133.03(b).

"No legal effect" and "solely for evaluation" meant offers for sale could not happen by mutual agreement; therefore Facebook's willing-seller / willing-buyer theory is debunked

Leader highlighted the "no-reliance" clauses in their JMOL (Judgement as a Matter of Law) stating:

"In addition, The Limited's executed NDA contained a "non-reliance" clause that made it clear that any Leader information exchanged between the parties prior to a formal written agreement shall have no "legal effect." Fig. 3; See also Linear Tech. Corp. v. Micrel, Inc., 275 F.3d 1040,1050 (Fed. Cir. 2001)("such communications cannot be considered offers, because they do not indicate LTC's intent to be bound, as required for a valid offer")(citing Restatement (Second) of Contracts § 26 (l981)("A manifestation of willingness to enter into a bargain is not an offer if the person to whom it is addressed knows or has reason to know that the person making it does not intend to conclude a bargain until he has made a further manifestation of assent.”). Leader JMOL 17.

Another provision of the Restatement (Second) of Contracts § 21, cmt. (b) reinforces the concept of an "agreement not to be legally bound."

The no-reliance NDA clauses mute Facebook's on sale bar argument.

Boston Scientific's NDA no-reliance language restricted use of the information "solely" for evaluation

The Boston Scientific NDA also included similar limiting no-reliance language. Its purpose was solely to explore mutual interests. Merriam-Websters defines "solely" as "exclusively." In other words, the information shared could exclusively not be used to define a contract that could be construed as an offer. Such terms blocked use of the information for anything other than evaluation, and is another form of no-reliance clause. This evidence is also fatal to Facebook.

Fig. 5 - Boston Scientific NDA states that the Leader information was to be used "solely" for evaluating future interest. Such limiting no-reliance language blocks the discussions from "rising to the level of a commercial offer for sale" pursuant to Group One. DTX-736. See Restatement (Second) of Contracts § 21 (1981) (agreement not to be legally bound). Doc. No. 651-13.

Another smoking gun? Facebook's Delaware jury focus group unmasked?

At the bottom of page 5 of Facebook's ostensible Boston Scientific evidence is yet another smoking gun fatal to Facebook. It dates that Leader2Leader evidence at sometime after "July 16, 2003 . . . PATENT PENDING" (p. 5, fn., line 4). That is seven months after the critical date. The date is buried in the footnote. This appears to have been a Facebook "dark arts" attempt to confuse the jury with a jumble of dates, esoteric law, and brand name references.

Facebook appears to have attempted to associate this later use of the Leader2Leader brand name—after July 16, 2003—with the first meetings ten months earlier—before the invention was ready. This document confirms Leader's trial testimony. The trial record shows no discussion of this date, but as a matter of law, the date invalidates this alleged Facebook's evidence.

If Facebook believed this version of Leader2Leader proved on sale bar, then why didn't they produce any source code? More importantly, why did they present this evidence at all since: (a) the NDA prohibits offers, and (b) closer scrutiny of the document date supports Leader? The evident answer is obfuscation—its effect on the jury's "belief" was more important than the truth. Reliable sources say this "belief effect" was tested on a jury focus group in Delaware organized by Facebook seven months before trial. Doc. No. 651-13, p.5, fn., ln. 4 ("July 16, 2003").

[Editor: If you were a participant in this Facebook focus group, please provide comments on that experience either here or on other blogs covering this case. Please identify the date, time, location and details.

Jury focus groups intent on deceiving a jury are a breach of the Federal Rules of Evidence (tampering with evidence), Federal Rules of Civil Procedure (Rule 11 "improper purpose") and Rules of Professional Conduct (Preamble: "dishonesty, fraud, deceit or misrepresentation"). Such lawyer conduct is harmful to our jury system and should be reported. Sources indicate that the participants in the focus group signed a confidentiality agreement, however, according to the District of D.C. Appeals Court they are not bound by agreements where "manipulation of the truth-seeking process" occurred. See In re Sealed Case, 676 F. 2d 793 (D.D.C. 1982) at 807 (confidentiality agreements cannot "be used as a tool for manipulation of the truth-seeking process.") Anonymous comments are welcomed.]

[Editor: After the original post of this blog we received an anonymous report from a participant in the Facebook focus group/mock trial. The credibility has been verified. See the Comments below.]

Leader's preeminent legal counsel oversaw protections

As if the NDAs were not enough, the first Boston Scientific meeting was arranged and attended by world-renowned intellectual property law Professor James P. Chandler, President of the National Intellectual Property Law Institute. The Congressional Record contains many references to Professor Chandler as one of the nation's preeminent advisers to Congress, the White House, and the Judiciary in the areas of trade secrets, economic espionage and intellectual property. See Footnote 2 below.[2]

Given Professor Chandler's participation, credulity is stretched to think that any disclosure rising to the level of a commercial offer for sale would have occurred during Professor Chandler's oversight of those first meetings. Facebook's accusation becomes frivolous in light of the fact that they produced no hard evidence like source code to prove their accusation. All the evidence produced by both Facebook and Leader shows Leader's consistent marking of its documents as "Proprietary & Confidential," their engagement of respected intellectual property protection experts, a need-to-know practice, in addition to the testimony of both inventors who said that the invention could not have been offered for sale when alleged since it was not ready. Nothing in the record beyond jury disbelief founded on innuendo supports Facebook. Leader JMOL, Doc. No. 627-12, 13, 14, 27.

No source code; no proof

The offer-blocking NDA language notwithstanding, Facebook's burden was to prove that the products alleged to have been offered for sale to WPAFB, The Limited and Boston Scientific contained all the elements of the invention. An offer that lacks even one of the elements fails to meet the on sale/public disclosure bar standard. No source code was proffered, even though Facebook was given access to Leader's source code. Merely showing a few documents that make reference to the Leader2Leader brand name proved nothing, but appear to have hoodwinked the jury.

Software products using the same brand name change over time. Microsoft Word in 2009 is a different product from Microsoft Word in 2002. Showing changes in the source code is the only way to prove innovative elements in software. See Leader's lawyers dismantle Facebook’s response brief, Fig. 8.1

All the alleged offers for sale were blocked by agreement (as matters of contract law); therefore, the on sale/public disclosure bar verdict must be overturned

With Facebook’s allegations of offers debunked as a matter of law, the on sale/public disclosure bar verdict must be overturned.

If Facebook prevails in the face of its deplorable trial conduct, an ill-wind blows over the face of patent law in America. Will the wind blow in the direction of Microsoft v. i4i ("Supreme Court Affirms Strong Presumption of Patent Validity") in support of the "clear and convincing evidence" standard? Or, will it blow ambiguously in the opposite direction? Time will tell.

* * *

Footnotes:

[1] U.S. v. Lange, 312 F.3d 263 (2002) at 266 (secrecy can rely upon deeds (splitting of tasks) just as effectively as NDA promises). The Leader v. Facebook trial record shows no Facebook assessment of Leader's deeds, but the evidence shows substantial Leader attention to secrecy precautions, especially in their choice of directors who are recognized leaders in the fields of trade secrets, security and intellectual property protection, including Professor James P. Chandler and Major Gen. James E. Freeze, US Army (ret.). See WPAFB white paper evidence. See also footnote 2 below.

Most of the following evidence are citations to the Congressional Record which may be judicially noticed during appeal. See Fed. R.Evid. Rule 201 (judicial notice may be taken at any time of adjudicative facts and facts not subject to reasonable dispute).

Fig. 6 - Page 6 of Leader's Wright-Patterson White Paper that identifies Professor James P. Chandler, President of the National Intellectual Property Law Institute, Major General James Freeze, US Army (ret), and William "Bill" DeGenaro as security and intellectual property advisers to Leader. This evidence was actually submitted by Facebook, but far from supporting Facebook, it shows that Leader engaged respected security advisers to protect its intellectual property. This evidence confirms Leader's "deeds" efforts pursuant to Lange to protect its inventions. Facebook did not perform a Lange deeds test regarding Leader's security practices.

Facebook attempted to use this white paper as evidence for on sale bar, even though: (a) WPAFB made a "no-reliance" agreement blocking offers; (b) WPAFB's research rules also blocked "buyer/seller" relationships; (c) Facebook and the district court misconstrued "fully developed" as a development instead of a financing statement; (d) numerous Leader products were being discussed with WPAFB that were not differentiated by Facebook, (e) no expert testimony was proffered by Facebook, (f) no WPAFB deposition testimony was proffered by Facebook, (g) no engineering or source code evidence was proffered by Facebook, and (h) the proposal was wholly experimental. All this evidence is fatal to Facebook. Doc. No. 627-13, DTX-179, p. 6.

Fig. 7 - Items of a Leader Report, pp. 1, 6 discussing the involvement of Leader directors Major General James E. Freeze and Professor James P. Chandler. This evidence was also submitted by Facebook, but like the white paper in Fig. 6, this evidence supports Michael McKibben's testimony that Leader engaged in substantial secrecy protection policies and procedures based on the advice of respected security professionals. This evidence also shows the "Proprietary & Confidential" trade secrets protection markings that appear on all of Leader documents. Such advisers and practices validate Leader's "deeds" in compliance with Lange, and are fatal to Facebook. Doc. No. 627-12, DTX-178, pp. 1, 6. Graphic: composite.


Fig. 8 - Professor James P. Chandler, former Leader Technologies Director, IP Counsel (See Archive.org "leader.com" 2001); President, National Intellectual Property Law Institute; Partner, Chandler Law Firm Chartered; Professor Emeritus George Washington University; adviser to Congress on intellectual property matters including trade secrets, patents, economic espionage.	Fig. 9 - James E. Freeze, former Leader Technologies Director (See Archive. org "leader.com" 2001); Chairman of Pinkerton Government Services; former head of the U.S. Army Security Agency; former Asst. Deputy Dir. of the National Security Agency (NSA); author of "The Freeze Report" on national laboratory security.

[2] Congressional testimony of Professor James P. Chandler, President of the National Intellectual Property Law Institute, and Major General James E. Freeze, U.S. Army (ret.), former head of the U.S. Army Security Agency and former Asst. Deputy Director of the National Security Agency. Both individuals were directors of Leader Technologies. See Figs. 8, 9.

Leader's secrecy deeds pursuant to Lange included reliance on the advice of former director Professor James P. Chandler whose congressional testimony and advice to the White House has included:

(a) S.Hrg. 104-499 - Economic espionage: Hearings before the Select Committee on Intelligence, United States Senate, and the Subcommittee on Terrorism, Technology, and Government Information of the Committee on the Judiciary, United States Senate, 104th Congress, Second Session, Feb. 28 (1996), Y 4.IN 8/19:S.Hrg. 104-499, Serial No. J-104-75 (Testimony of Louis Freeh acknowledging Professor James P. Chandler, p. 10). Last accessed Jan. 9, 2012 from Archive.org USA Gov. Doc. Call No. 39999059839439, ABSTRACT, PDF Version (5.3 MB), TXT Version (291KB), Online Version (134KB), MARCXML Catalog.

(b) H.Rept. 104-784 - MOORHEAD-SCHROEDER PATENT REFORM ACT: Hearings on H.R. 3460 before the Subcommittee on Courts and Intellectual Property of the Judiciary, June 8, 1995 and November 1, 1995, 104th Congress, Y 1.1/8 (1996) (citing Testimony of Mr. James Chandler, President of the National Intellectual Property Law Institute, Washington D.C., p. 39), GPO ABSTRACT, PDF Version (6 MB), TXT Version (174KB). GPO Authenticity Certificate.

(c) H.Rept. 104-788 - ECONOMIC ESPIONAGE ACT OF 1996: Hearings on H.R. 3723 before the Subcommittee on Crime of the Committee on the Judiciary, May 9, 104th Cong., Y 1.1/8 (1996) (citing Testimony of Dr. James P. Chandler, p. 8), GPO ABSTRACT, PDF Version (6 MB), TXT Version (174KB). GPO Authenticity Certificate; See also H.Rept. 104-879.

(d) H.Rept. 104-879 - Trade Secret Law and Economic Espionage: Hearings on H.R. 1732 and H.R.1733 Before the Subcommittee On Crime of the House Committee on the Judiciary, H.R. 359, 104th Congress, Y 1.1/8 (1996) (Testimony of Professor James P. Chandler, President of the National Intellectual Property Law Institute, p. 163, 167, 201), GPO ABSTRACT, PDF Version (740K), TXT Version (684KB). GPO Authenticity Certificate; See also H.Rept. 104-879.

(e) H.Rept. 104-879 - Patent Term: Hearings on H.R. 359 during Hearings on H.R. 1732 and H.R.1733 Before the Subcommittee On Crime of the House Committee. on the Judiciary, 104th Cong., Y 1.1/8 (1996) (Testimony of Professor James P. Chandler, President of the National Intellectual Property Law Institute, pp. 167-168), GPO ABSTRACT, PDF Version (740K), TXT Version (684KB). GPO Authenticity Certificate.

(f) H.Rept. 104-879 - Protection of Commercial Trade Secrets in US National Laboratories: Hearings on H.R. 359 Before the Subcommittee On Energy and the Environment of the House Comm. on the Judiciary, 104th Cong. (1996) (Testimony of Professor James P. Chandler, President, National Intellectual Property Law Institute, pp. 167-168), GPO ABSTRACT, PDF Version (740K), TXT Version (684KB). GPO Authenticity Certificate; See also H.Rept. 104-879.

(g) H.Rept. 104-887 - SUMMARY OF ACTIVITIES OF THE COMMITTEE ON SCIENCE U.S. HOUSE OF REPRESENTATIVES FOR THE ONE HUNDRED FOURTH CONGRESS: Hearings Changes in U.S. Patent Law and Their Implications for Energy and Environment Research and Development Before the Subcommittee on Energy and Environment of the Committee on Science, 104th Congress, May 2, 1996. Washington: U.S. G.P.O. (1997), Y 1.1/8 (Testimony of Dr. James P. Chandler, President, [N]ational Intellectual Property Law Institute, Washington D.C., pp. 176-177), GPO ABSTRACT, PDF Version (740K), TXT Version (684KB). GPO Authenticity Certificate.

(h) H.Rept 104-879 - REPORT ON THE ACTIVITIES OF THE COMMITTEE ON THE JUDICIARY of the HOUSE OF REPRESENTATIVES during the ONE HUNDRED FOURTH CONGRESS pursuant to Clause 1(d) Rule XI of the Rules of the House of Representatives, Trade Secret Protection for Inventors Should Not Be Abolished While Reforming Patent Law, Patent and Trademark Office Corporation Act of 1995, United States Intellectual Property Organization Act of 1995: Hearings on H.R. 1659 and H..R. 2533 Before the Subcommittee On Courts and Intellectual Property of the House Comm. On the Judiciary, 104th Congress. Washington: U.S. G.P.O. (1996) (Testimony of Professor James P. Chandler, President, National Intellectual Property Law Institute, pp. 159-161.), GPO ABSTRACT, PDF Version (740K), TXT Version (684KB). GPO Authenticity Certificate.

(i) Y 4.J 89/1:104/30 - Patents Legislation : Hearings Before the Subcommittee On Courts and Intellectual Property of the Committee On the Judiciary, House of Representatives, 104th Congress, First Session, On H.R. 359, H.R. 632, H.R. 1732, and H.R. 1733, June 8 and November 1, 1995. Washington: U.S. G.P.O. (1996). Y 4.J 89/1:104/30, ISBN 0-16-052342-7, OCLC 34470448, 104 PL 308, 110 STAT 3814 (Testimony of Professor James P. Chandler, President, National Intellectual Property Law Institute, pp. III, IV, 349-354, PDF Version), FULL TXT Version of the Hearings; See also H.Rept. 104-879, GPO ABSTRACT, PDF Version (740K), TXT Version (684KB). GPO Authenticity Certificate.

(j) The White House, Office of the Press Secretary. (Jan. 18, 2001). President Clinton Names Eighteen Members to the National Infrastructure Assurance Council [Press release] (citing "Mr. James Phillip Chandler" [Professor James P. Chandler] head of "the National Intellectual Property Law Institute" and "Emeritus Professor of Law at the George Washington University" and "President of Chandler Law Firm Chartered," ¶14). Retrieved from National Archives and Records Administration <http://clinton6.nara.gov/2001/01/2001-01-18-members-named-to-national-infrastructure-assurance-council.html>.
"The National Infrastructure Assurance Council (NIAC) was established by Executive Order 13010 on July 14, 1999 . . . to propose and develop ways to encourage private industry to perform periodic risk assessments on critical processes, including information and telecommunications systems." Id.
Common sense says that Professor Chandler would have been encouraging his then-current client, Leader Technologies, to practice these principles as the company developed its innovations. However, Leader was not given an opportunity to gather testimony from Professor Chandler and Major General Freeze because the trial court allowed Facebook to add its on sale/public disclosure bar claim after the close of discovery. While prejudicial amended claims are technically not permitted by the Rules, such trial court decisions are rarely, if ever, overturned on appeal. That's ashamed in this case. Facebook evidently learned something in their jury focus group that convinced them that they could use fabricated evidence to hoodwink the jury. See Jury transforms disbelief into evidence; No evidence? No problem. Fabricate it.; Facebook’s' trial conduct; Facebook's "court room theater"; Facebook's "I'm tired" tactic; Missing Facebook Documents; Expert witness practices "dark arts"; Patent Office records disprove Facebook; Facebook's jury binder innuendo.

(k) Theodore R. Sarbin. "Computer Crime: A Peopleware Problem." Proceedings of a Conference held on October 25-26, 1993." Defense Personnel Security Research Center (1993). Doc. Nos. DTIC-94-7-18-001, AD-A281-541. (citing Professor James P. Chandler, National Intellectual Property Law Institute, pp. i, 2, 3, 5, 13, 14, 33-72). Accessed Jan. 12, 2012 . <http://www.dtic.mil/cgi-bin/GetTRDoc?AD=ADA281541>.

(l) James P. Chandler. "Patent Protection of Computer Programs." National Intellectual Property Law Institute (2000). Accessed Jan. 13, 2012 <http://www.nipli.org/docs/computer.pdf>.

Congressional testimony of Major General James E. Freeze, U.S. Army (ret.) includes the following; further reinforcing the evident fact that Leader took extraordinary "deeds" steps to protect the secrecy of its inventions pursuant to the Lange. See Fig. 9.

(a) H.Hrg. 106-148 - Hearing on the WEAKNESSES IN CLASSIFIED INFORMATION SECURITY CONTROLS AT DOE'S NUCLEAR WEAPON LABORATORIES, 106th Congress, Y 4.C 73/8 (2000) (citing "The 1990 Freeze Report" and Major General James E. Freeze, USA (ret.)," pp. 171, 172), GPO ABSTRACT, PDF version (6 MB), TXT version (174KB). GPO Authenticity Certificate.

"The [1990] Freeze Report" is actually mentioned in Leader evidence. The Leader evidence in Fig. 6 verifies Michael McKibben testimony and the Wright Patterson evidence that Leader exercised reasonable measures pursuant to the Lange deeds test to preserve secrecy. See Fig. 6 above.

(b) GAO/RCED-93-10 - Nuclear Security - Improving Correction of Security Deficiencies at DOE's Weapons Facilities, Report to the Chairman, Subcommittee on Oversight and Investigations, Committee on Energy and Commerce House of Representatives, Nov. 1992. U.S. General Accounting Office. GAO/RCED-93-10 Nov. 1992 (citing Major General James E. Freeze, p. 18). Accessed Jan. 11, 2012 from the U.S. Government Accounting Office <http://www.gao.gov/assets/220/217384.pdf>.

(c) Statement of John C. Tuck, Undersecretary of Energy, U.S. Department of Energy before the Committee on Energy and Commerce, Oversight and Investigations Subcommittee (Serial T91BB192), 100th Congress (1991) ("[Admiral Watkins] commissioned a study conducted by retired Army Major General James E. Freeze to review the broad area of safeguards and security"). Accessed Jan. 11, 2012 from the Federation of American Scientists <http://www.fas.org/irp/congress/1991_hr/h910424.htm>.

(d) Matthew L. Wald. "SECURITY GAP SEEN AT NUCLEAR SITES." The New York Times, Dec. 21, 1990 ("James E. Freeze, a retired Army major general who is a former deputy chief of the National Security Agency, called for major management changes"). Accessed Jan 11, 2012 <http://www.nytimes.com/1990/12/21/us/security-gap-seen-at-nuclear-sites.html>.

-END-

Leader's lawyers dismantle Facebook’s "schizophrenic” response brief

2011-11-28T16:05:00.000-08:00

OPINION: One blogger's perspective

Oral arguments will now be scheduled in front of a 3-judge panel at the Federal Circuit Court of Appeals

In a recondite rebuff of Facebook's legal arguments, Leader lawyers take Facebook to the proverbial woodshed. The stage is now set for a showdown on legal matters that will affect American innovation and jurisprudence for many years, if not decades. If Leader prevails it will support the American inventor and entrepreneurial spirit. If Facebook prevails it will encourage big infringers/counterfeiters to steal inventions and use their ill-gotten gain from the inventions to fend off their day of reckoning.

November 28, 2011 — Leader Technologies today filed its reply brief (Fig. 3, below) following Facebook's response brief (Fig. 2, below) to Leader's opening appeal brief (Fig. 1, below) in Leader Technologies, Inc. v. Facebook, Inc., 08-CV-862-JJF-LPS (D.Del. 2008). Fed. Cir. Case No. 2011-1366. This was the final brief before oral arguments. The U.S. District Court trial resulted in a split verdict. Leader won the meat of the trial: Leader won on "literal infringement" of 11 of 11 patent claims and no published prior art regarding Leader's U.S. Patent No. 7,139,761. In other words, the engine running Facebook is Leader's invention. Facebook won on an esoteric law called "on sale bar and public disclosure." On appeal to the Federal Circuit Court of Appeals in Washington D.C., Leader argues that Facebook had no evidence of sale/public disclosure and confused the jury with court room theatrics. Facebook says their evidence was "substantial." The evidence appears to be fatal to Facebook.


Fig. 1 - Leader OPENING White Brief, Jul. 25, 2011, Fed. Cir. Case No. 2011-1366.	Fig. 2 - Facebook RESPONSE Red Brief, Oct. 24, 2011. Fed. Cir. Case No. 2011-1366.	Fig. 3 - Leader REPLY Gray Brief, Nov. 28, 2011. Fed. Cir. Case No. 2011-1366.

Leader shows that Facebook's response is riddled with inconsistencies, misrepresentations, misdirection, weak or non-existent legal argument and pointless invectives. Among the highlights are these:

"Sole question for the jury" sidelined: After making inventor Michael McKibben's credibility the "sole question for the jury" at trial, Facebook now sidelines this argument in favor of new arguments that were not presented to the jury or in post-trial motions, sort of. (Perhaps because Facebook knows that appeals judges, unlike a jury, are not misled by trial theater.)

"Muckracking:" While sidelining McKibben's credibility as their main argument, Facebook schizophrenically trash-talks McKibben on no fewer than 17 pages of its brief (e.g., "McKibben lied," "McKibben's lies," "McKibben's guilty knowledge," "McKibben's falsehoods"). See Fig. 2.1.

Fig. 2.1 - Vitriolic references to Leader inventor Michael McKibben in Facebook's Oct. 24, 2011 Red Brief in Leader's appeal to the Federal Circuit Court of Appeals of Leader Technologies, Inc. v. Facebook, Inc., 08-862-JJF-LPS (D.Del. 2008); Fed. Cir. Case No. 2011-1366.

Attacking inventors to create opposite-evidence: After relying on the idea that disbelief of an inventor's testimony is affirmative evidence of the opposite, Facebook feebly defended this "general principle;" as if they don't really believe it themselves. Leader's lawyers pointed out (and Facebook ignored) that the federal circuit is split on this issue. The "general principle" may apply in cases where the scales of evidence are otherwise weighted more or less evenly. However, in this case, there is no other evidence on either scale. Getting the jury to disbelieve McKibben's testimony was Facebook's entire on sale/public disclosure case. No source code. No engineering drawings. No third party testimony. No expert testimony. No technical information at all. The implications of this argument, if it prevails, are profound on all law since it will open the door for the guilty to encourage their victims to testify truthfully, then use "dark arts" tactics to encourage the jury to disbelieve that testimony. This was Facebook's evident tactic at this trial.
Ignored Legal Argument: Facebook ignored (failed to "differentiate") most of the legal arguments Leader made in its opening White Brief. Such conduct signals a lack of belief in one’s key lower court arguments. More damaging to Facebook, by not arguing the law, they waive their defenses under those laws.

Some examples: (a) Facebook failed to argue why they are permitted to ignore the jury's instructions to perform an element-by-element comparison of the claims against the alleged sale/public disclosures. (b) Instead, they just repeat the mantra that McKibben lied and that the jury's disbelief cannot be questioned. However, such circumstances are why the appeals process exists—to correct misapplications of the law. (c) Facebook then failed to argue why they are permitted to ignore the district court's opinion focusing the question of law on Interrogatory No. 9 as the "sole question" for the jury. (d) Following that, Facebook ignored Leader's argument that a 2009 present tense answer to an interrogatory about the components of Leader2Leader® in 2009, by the plain English, cannot apply to the components in 2002. (e) Then, Facebook argued that the courts are not permitted to take judicial notice of registered trademark dates at the U.S. Patent Office for the combined marks Leader2Leader® and Digital Leaderboard®—the prima facie combination of which puts Interrogatory No. 9 outside the critical date. (f) Facebook's argument focused instead on the Leader2Leader® mark and ignored completely the Digital Leaderboard® mark award date of Dec. 16, 2003—another elephant in the room that is fatal to Facebook.

Without bogging down this article with too many legal citations, the following relate to the subject matter of the previous paragraph: Scaltech Inc. v. Retec/Tetra, L.L.C. (Fed. Cir. 1999) ("first determination" in any on sale bar "analysis must be whether the subject of the barring activity met each and every limitation of the claim, and thus was an embodiment of the claimed invention"); Carr v. United States (U.S. 2010) (use of present tense in statute does not include past actions); Helifix Ltd. v. Blok-Lok, Ltd. (Fed. Cir. 2000) (mere mention of the "DryFix" brand name in a trade show brochure and other letters failed to show a tool that met all the limitations; "there were many tools that had been called 'DryFix tools'"); Federal Rules of Evidence 201 (b)(2) ("The court may judicially notice a fact that is not subject to reasonable dispute because it: . . . (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned).

New "Phantom NDA" Debunked: In a myopic interlude, Facebook consumes an entire page of its Red Brief accusing McKibben of lying about an April 2, 2001 NDA—calling it a "phantom NDA" (non-disclosure agreement). Facebook's new argument (not made to the jury) is that the first Wright-Patterson Air Force Base ("WPAFB") NDA did not occur until Apr. 10, 2001. Ostensibly, Facebook claims that this proves: (1) McKibben is a liar with "guilty knowledge" and the jury was right to disbelieve him, and (2) the invention was publicly disclosed. Facebook repeated the phrase "guilty knowledge" seven times.

Facebook's "McKibben lies" epithets turn on an internal Apr. 3, 2001 email from Leader engineer Steve Hanna to Leader's developers in which he mentions a presentation on Apr. 2, 2001 attended by an unnamed person who was "the number one ranking civilian at WPAFB - Executive Director of Aeronautical Systems Center." See Fig. 5.1.

Fig. 5.1 – Internal Apr. 3, 2001 Leader email (composite graphic) written by engineer Steve Hanna confirming attendance by a WPAFB participant at a University of Dayton presentation on Apr. 2, 2001. This evidence was actually submitted by Facebook as DTX-1348, Trial Doc. No. 675-25.

Facebook's new argument is that McKibben lied when he testified at trial that "Vincent Russo" was the WPAFB person at that meeting. Facebook Red Br. 40, 44; Trial Tr. 10805:24-10806:3. Facebook now floats the story that the first WPAFB NDA did not occur until the Douglas W. Fleser NDA on Apr. 10, 2001. This new argument was never presented to the jury or in post-trial motions. McKibben's testimony is the only evidence on point. See Fig. 5.2.

Facebook appears to be attempting to expand its "opposite of testimony" theory to new facts never before contested. In other words, McKibben testified that the WPAFB person on Apr. 2, 2011 was Vincent Russo. But, if Facebook can convince the court that the jury did not believe him (and absent any other proof of Russo's association with WPAFB), then maybe they could prevail on the "opposites" theory that Russo was not associated with WPAFB, and therefore, an unidentified third party from WPAFB was the recipient of the allegedly invalidating public disclosure; notwithstanding an entire body of patent and trade secret law in Leader's favor as well.

Fig. 5.2 – WPAFB fax cover page header, and Leader NDA signature block (composite graphic) signed by Douglas W. Fleser on Apr. 10, 2001. PTX-1058, Trial Doc. 628-9.

The Russo NDA (signature block shown below) did not explicitly identify his association with WPAFB. So, Facebook evidently decided to disbelieve McKibben's testimony about the association (with no proof to the contrary). See Fig. 5.3; Leader Reply 13.

Fig. 5.3 – Signature block from the Leader NDA signed by (Dr.) Vincent J. Russo on Apr. 2, 2001. This document was submitted into evidence by Facebook. Excerpt of DTX-725, Trial Doc. No. 627-19.

However, a quick Google search of the Congressional Record proves fatal to Facebook. It confirms that "Dr. Vincent J. Russo" was, indeed, the top civilian at Wright-Patterson Air Force Base between at least 1999 and 2003, which would include Apr. 2, 2001, just like both Hanna and McKibben said. See Fig. 5.4.

Fig. 5.4 – S. Hrg. 108-100 - AN OVERLOOKED ASSET: THE DEFENSE CIVILIAN WORKFORCE, 108th Cong. III, SuDoc. Cl. No. Y 4.G 74/9, p. 11 (2003) (testimony of Dr. Vincent J. Russo), GPO ABSTRACT, PDF version (6 MB), TXT version (174KB). GPO Authenticity Certificate. Dr. Russo's testimony places him at WPAFB on Apr. 2, 2001. Graphic: composite.

McKibben testified at trial (See Trial Tr. 10805:24-10806:3):

Q. The meeting you had on April 2nd, 2001, was it with Mr. Fleser?
A. No. I had not met him yet.
Q. Okay. Who was at that meeting?
A. The person at that meeting was invited by the senior people from the University of Dayton to attend. And was the top civilian at Wright Patterson Air Force Base. His name was Vincent Russo.
Q. Did you obtain an NDA from Mr. Russo?
A. I did.

Fig. 5.5 – Correlation of evidence which proves incontestably that Michael McKibben's testimony about the Apr. 2, 2001 presentation at the University of Dayton was truthful.

Therefore, (a) the Congressional Record provides irrefutable proof that Dr. Vincent J. Russo was associated with WPAFB on Apr. 2, 2001, (b) McKibben's testimony was accurate, (c) any jury disbelief of McKibben in this matter was legal error, and (d) Facebook’s new "phantom NDA" accusation is wrong—and knowingly so. Model Rules of Professional Conduct 3.3, Candor Toward The Tribunal ("(a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal").

Both cannot be true: Facebook used Leader's provisional patent source code to successfully invalidate Leader’s earlier provisional patent priority date—based on the testimony of Facebook's expert witness Dr. Saul Greenberg. Dr. Greenberg testified that the invention was not present in the source code.

However, Facebook then argued the polar opposite when trying to prove on sale/public disclosure. For on sale/public disclosure bar, Facebook ignored Dr. Greenberg's testimony, and argued that days earlier the full invention was present, was disclosed and was offered for sale. Facebook's problem here is that while they were able to produce Leader source code to disprove the presence of the invention in the provisional patent, they did not produce Leader source code to prove on sale/public disclosure bar. Both claims cannot be true. The absence of Leader source code proof in their on sale/public disclosure bar argument is fatal. See Fig. 6.1; See also Expert witness practices "dark arts."

Fig. 6.1 - Excerpts from the testimony of Facebook expert witness Dr. Saul Greenberg regarding the only Leader source code placed into evidence in the trial. This source code was contained in the provisional patent application. Dr. Greenberg testified that this source code did not disclosure the '761 invention. However, regarding the on sale/public disclosure claim, Facebook argued that the entire invention was ready for patenting (without showing any additional source code). Trial Doc. No. 623. Tr. 10903-10908.

Note that Dr. Greenberg was not an expert witness for on sale/public disclosure bar, but rather for prior art and enablement of the provisional patent. Facebook did not proffer an expert for on sale/public disclosure bar. Therefore, the only Facebook expert testimony at trial on the subject of Leader's source code is Dr. Greenberg's which is fatal to Facebook.

Ignoring the "clear and convincing standard" legal argument; re-arguing trial evidence instead: Facebook spends 11 pages re-arguing its trial evidence. Leader's appeal argument is on the "clear and convincing evidence" legal standard. Facebook largely ignored that question of law and merely re-argued its trial case. This could prove fatal since hard evidence of the kind that only source code could provide was glaringly missing.

Smoking Gun: In fact, the trial record reveals a Facebook "smoking gun." Even Facebook's own attorney argued to the trial court that the only way they could tell if Leader2Leader practiced the invention was to study the source code.

See Facebook Cooley Godward LLP attorney Mark Weinstein's letter to Judge Stark citing his Jan. 27, 2010 letter to Leader attorney James Hannah 6 months before trial: "in order to analyze whether or not it practices the '761 patent... Facebook would require... the source code for Leader2Leader." See Fig. 8.1.

Fig. 8.1 – Facebook's attorney, Cooley Godward LLP Attorney Mark Weinstein's Feb. 27, 2010 statement to Judge Leonard Stark that Facebook needed access to the Leader2Leader source code in order to prove whether or not the back end components practiced the '761 invention (six months before trial). Trial Doc. No.283, Ex. 3, PDF p. 11..

The judge was persuaded and gave Facebook access, but tellingly, none of the source code was produced at trial to prove sale/public disclosure. Since the source code is the only sure way for Facebook to have shown the inner workings of software patents, one can only presume they did not find evidence to prove on sale bar and public disclosure—so they did not use any of it at trial. This absence of source code proof should be fatal (although one can excuse a lay jury's lack of appreciation for this clearly intentional Facebook omission). Facebook's trial conduct here is reminiscent of the "Pay no attention to that man behind the curtain" scene from the Wizard of Oz.

Facebook's argument that they provided "substantial" evidence to meet their "clear and convincing" burden of proof is disingenuous. It contradicts Mark Weinstein's earlier statements to the district court. Reason, common sense and the law all say this should be fatal.

New arguments: Facebook's brief argued "alternative grounds for affirmance." This means that Facebook made new arguments to the court on appeal that it did not make in the lower court. Such tactics signal lack of belief in the strength of one’s case, and appeals courts rarely give such "Hail Mary" arguments much weight, if any.
No expert testimony: Facebook makes brand new arguments about Leader’s patent claims that they did not argue to the jury, nor did they argue in post-trial motions. The arguments are too technical for discussion here since they address esoteric areas of patent law like "infringement theories," "limitations," "claim construction," "indefiniteness" and "presumption of validity." These new Facebook arguments are likely out-of-order since they are normally the subject of extensive pre-trial expert witness reports and testimony that are dictated by well-settled law called the Markman Hearing and Daubert Motions. The expert testimony from both sides would have been presented to the jury. None of this happened with these new arguments.

Haughtiness in the face of "literal infringement:" Facebook's flippancy gets even more strange when—in the face of a "literal infringement" verdict against them on 11 of 11 Leader claims and no published prior art—they state in their first footnote on page 4 that they don't think that the technology that Leader invented is anything special (and by inference neither is their technology). Such haughty statements may come back to haunt them.

Facebook does not believe that the '761 patent reflects a significant advance or solves any significant problem. The terms "inventor" and "invention" are used merely for convenience." Facebook Red Brief, fn. 1.

Fig. 11.1 - Facebook's footnote 1 in its appeal reply brief. This comment belies the verdict against them of "literal infringement" of 11 of 11 claims in Leader Technologies, Inc. v. Facebook, Inc., 08-862-JJF-LPS (D.Del. 2008). In other words, the engine running the Facebook website is Leader's invention. See U.S. Patent No. 7,139,761; Fed. Cir. Case No. 2011-1366.

This is surreal comment given the frenzy with which Mark Zuckerberg is being listed as inventor on inventions around the planet—54 at last count—using Leader's patent as the foundation. All this Facebook activity to protect its intellectual property contradicts their self-confessed hacker culture and their disrespect for the privacy and property rights of others—as exposed by the recent Federal Trade Commission sanction of Facebook for deceptive privacy practices and Mark Zuckerberg's vacuous mea culpa. See Achohido, Byron. "Facebook settles with FTC over deception charges," USA Today, Dec. 2, 2011. Last accessed Dec. 3, 2011.

Mark Zuckerberg: "one good hacker can be as good as 10 or 20 engineers." Wired, Apr. 19, 2010; Hollywood Reporter, Jun. 28, 2011.

Impressive patent activity for a hacker. Facebook sends an ambiguous message regarding intellectual property. On the one hand, they admit hacking ideas at a feverish pace, and on the other, they are filing patent applications with abandon. See U.S. Patent Nos. 7,669,123; 7,725,492; 7,788,260; 7,797,256; 7,809,805; 7,827,208; 7,827,265; 7,890,501; 7,933,810; 7,945,653; 7,970,657; 8,010,458; 8,027,943; 8,037,093; U.S. Patent App. Nos. US 2011/0264736 A1; US 2011/0231747 A1; US 2011/0225481 A1; US 2011/0202531 A1; US 2011/0202822 A1; US 2011/0087526 A1; US 2011/0029388 A1; US 2011/0004831 A1; US 2010/0199192 A1; US 2010/0146443 A1; US 2009/0182589 A1; US 2009/0119167 A1; US 2009/0037277 A1; US 2008/0091723 A1; US 2008/0046976 A1; US 2008/0040474 A1; US 2008/0040673 A1; US 2008/0033739 A1; US 2007/0214141 A1; US 2007/0192299 A1; US 2004/0230672 A1; PRC 101849229 A; PRC 101495991; PRC 101366029; EP 2210185 A1; EP 1971911 A2; EP 1964003 A2; EP 1682089 A2; CA 2704680 A1; CA 2703851 A1; CA 2660539 A1; CA 2660459 A1; CA 2634961 A1; CA 2634928 A1; CA 2633512 A1; CN 101495991; CN 101366029; CN 101849229 A. See "Mark Zuckerberg's Patents," ip.com. Last accessed Dec. 3, 2011; See also Inequitable Conduct.

More review of this Federal Circuit appeal will be forthcoming now that all the legal arguments are in.

Reckless Modus Operandi

The elephant-in-the-room question for Facebook is their motivation for not settling this case. The engine running their site is Leader's invention. Facebook "literally infringes" Leader U.S. Patent No. 7,139,761—that is now proven and will most likely be affirmed on appeal.

Facebook and Lawfare

Given a pending damages-willfulness-injunction trial in this case, one cannot imagine Facebook going public with this risk disclosure embedded in a prospectus. Another theory endorsed by some pundits familiar with this case is that Facebook has adopted a "lawfare" posture against all those from whom they have stolen intellectual property. PhD candidate, Christi Scott Bartman, recently wrote on this subject. Facebook's convoluted arguments in this case consume enormous amounts of limited judicial resources, their privacy deceptions triggering FTC investigations consume limited regulatory resources, and Mr. Zuckerberg's flurry of patent applications worldwide consume even more limited regulatory resources.

Whatever the motivation for continuing to press convoluted arguments, American inventor-ship is on trial here. Will it back the innovation horses, or the leg-less horsemen? Time will tell.

* * *

10. Facebook's jury binder innuendo

2011-09-16T14:48:00.000-07:00

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

2011-09-08T09:50:00.000-07:00

Opinion: One blogger's perspective

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

2011-09-04T10:16:00.000-07:00

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.

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.
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

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?
"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.
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.
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.
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."
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).

* * *

1. Mark Zuckerberg used Leader white paper to build Facebook

2011-08-27T22:48:00.000-07:00

Opinion: One blogger's perspective.

On July 26, 2011, Leader Technologies filed its Opening Brief in the Federal Circuit Court of Appeals in the Leader Technologies Inc. v. Facebook Inc., 08-CV-862-JJF/LPS (D. Del. 2008) patent infringement fight.[1] See Leader Press Release, Jul. 26, 2011.

Initially Leader and inventor Michael McKibben were the subject of much sarcasm in the blogosphere. Numerous bloggers labelled them "patent trolls" and "squatters." Techdirt, Sep. 9th 2009 dismissed Leader's claims as a "publicity stunt" and VentureBeat, Nov. 19, 2008 said the claims were "impressively weak." See also AllFacebook.com, Nov. 19, 2008.

Verdict: Facebook "literally infringes" Leader's patent

To the contrary, Leader claims resulted in a jury decision that Facebook literally infringes 11 of 11 Leader patent claims and that no published prior art exists. This part of the trial was a level playing field and was well-tested. Leader Opening Brief, Jul., 25, 2011, p. 3; also available at Leader. As Leader's appeal brief describes, the element of the verdict that Facebook "won" regarding alleged early commercial activity appears to have been the result of jury confusion surrounding Facebook's "court room theater" and personal attacks of Mr. McKibben's credibility in lieu of hard evidence. This part of the trial was not a level playing field and was the subject of considerable Facebook attorney "dark arts" tactics which Leader is seeking to have set aside by the Federal Circuit. See Facebook's trial conduct; See also Facebook's "I'm tired" tactic; Expert witness practices "dark arts;" No evidence. No problem. Fabricate it.; Missing Documents; Patent Office records disprove Facebook; Facebook's "court room theater."

As the facts emerge, the patchwork of Facebook origin stories is finally starting to address the previously unanswered elephant-in-the-room question: How can a complete platform be conceived, researched, designed, written, edited, debugged and staged in under two weeks, by one person, while taking a full class load and studying for finals?

It now appears that: (1) as asserted by Leader, Mark Zuckerberg hacked his platform technology ideas from Leader Technologies' white papers (he testified that he did not remember the "other" sources for Facebook, but that he never saw the Leader white papers), and garnered the "faces" ideas from three sources: (2) the Winklevoss twins (ConnectU), (3) Aaron Greespan (houseSYSTEM) and (4) even the Harvard administration. Mr. Zuckerberg only vaguely admits to "other" sources while adamently denying each and every specific source put forward. This should be no surprise since Mr. Zuckerberg boasted to Wired magazine that "one good hacker can be as good as 10 or 20 engineers" (cited below) and recently hired hacker George Hotz who broke into Sony PlayStation servers; an incident that cost the company $25 million.[4] See Wired, Apr. 19, 2010; Hollywood Reporter, Jun. 28, 2011.

Another set of facts is that the Leader patent application published on June 24, 2004 and Mark Zuckerberg testified in the ConnectU case that he hired Steven Dawson Haggerty to build the "groups functionality" during that same time in the summer of 2004. The Leader patent application specifically describes Leader's groups context innovations (references below). According to The Harvard Crimson, this groups feature is what accelerated Facebook's popularity from a singular student profile to an interactive system. "New Facebook Groups Abound," The Harvard Crimson, Dec. 3, 2004.

Much of the new information referenced here is sourced from the U.S. District Court's PACER website.[6] Click the link here for instructions on sign up and access: The case caption is Leader Technologies Inc. v. Facebook Inc., 08-CV-862-JJF/LPS (D. Del. 2008). See How to Access PACER.

The court documents reveal how Mark Zuckerberg was able to accelerate from 0-to-60 mph in "one or two weeks" while studying for his Harvard finals to start Facebook on February 4, 2004. The idea for the student facebook was already known at Harvard from three well-documented sources prior to Mr. Zuckerberg: (1) the Winklevoss twins' ConnectU,[1] (2) Aaron Greenspan's houseSYSTEM,[2] and (3) from the Harvard computer administration.[3] And, if Leader Technologies ("Leader") is right, Mr. Zuckerberg lifted the ideas for the structure of the platform from Leader Technologies' patent pending white papers, one published on October 22, 2003, along with Leader's first patent publication on June 24, 2004—exactly when Mr. Zuckerberg says "Steven Dawson Haggerty" was hired to build the "groups functionality" which is disclosed in the Leader patent publication.[4][5][6][7]

[1] Nicholas Carlson. "At Last -- The Full Story Of How Facebook Was Founded." Business Insider, Mar. 5, 2010. Accessed Jul. 15, 2011.

[2] Aaron Greenspan. "Aaron's Answers about houseSYSTEM." Quora, Oct. 4, 2010. Accessed Jul. 16, 2011.

[3] David M. Kaden. "College Inches Toward Campus-Wide Facebook." The Harvard Crimson, Dec. 9, 2003. Accessed Jul. 16, 2011.
[4] Mark Zuckerberg Deposition. The Facebook vs. ConnectU, April 25, 2006. Accessed Aug. 1, 2011.

[5] Leader Technologies, Inc.'s Counter-Statement of Disputed Facts, Leader Technologies, Inc., v. Facebook, Inc., 08-cv-861-JJF, Jun. 11, 2010. Accessed Aug. 2, 2011.

[6] Michael McKibben. "White Paper: Leader2Leader® — What convergence was meant to be." Leader Technologies®/archive.org, Oct. 22, 2003; Leader v. Facebook, Doc. No. 477, Ex. 28. Accessed Aug. 2, 2011.

[7] Katherine M. Gray. "New Facebook Groups Abound." The Harvard Crimson, Dec. 3, 2004. Accessed Aug. 3, 2011.

Leader inventor Michael McKibben’s son Max lived in Winthrop House, the dormitory next to Mark Zuckerberg's Kirkland House where Mr. Zuckerberg's now infamous hacking, depicted in The Social Network movie, was carried out. See Mark Zuckerberg Oct. 28, 2003 Online Hacking Diary; See The Social Network Hacking Scene, YouTube; See also Harvard campus map showing the proximity of Winthrop House and Kirkland House .
Four (4) emails between Leader inventor Michael McKibben and his Harvard son Max dated between April 21, 2003 and January 13, 2004 are identified in the joint evidence list. These dates predate the founding of Facebook on February 4, 2004. See Proposed Joint Evidence List, May 27, 2010, PTX 776-779, p. 17. The contents of these emails are not known at the present time since this "willfulness" evidence has not yet entered the case.
Mark Zuckerberg hacked into the Harvard student house site servers and email accounts multiple times. See Mark Zuckerberg Oct. 28, 2003 Online Hacking Diary; Nicholas Carlson. "In 2004, Mark Zuckerberg Broke Into A Facebook User's Private Email," Business Insider, Mar. 5, 2010.
Mark Zuckerberg stated that “one good hacker can be as good as 10 or 20 engineers.” Wired, Apr. 19, 2010.
Leader invested 145,000 man-hours and over $10 million to develop the initial concept and build a working embodiment of the technology. Leader Opening Brief, Jul. 25, 2011, p. 6; also available at Leader.
Mark Zuckerberg testified to have built the first version of Facebook in “one or two weeks” while studying for finals in January 2004. Mark Zuckerberg ConnectU Deposition, Apr. 25, 2006, Tr. 41:3-42:1; Tr. 42:17-20; Tr. 82:3-7.
Mark Zuckerberg stated in ConnectU testimony that he could not remember his “other” sources for his ideas for Facebook, and testified in Leader v. Facebook that Leader’s white papers were not among those “other” sources. Mark Zuckerberg ConnectU Deposition, Apr. 25, 2006, Tr. 36:17-22.
Leader published a white paper on its invention on October 22, 2003. Mark Zuckerberg hacked the Harvard House sites on October 28, 2003, six days later. Leader White Paper, Oct. 22, 2003, Archive.org, cited in Leader v. Facebook, Doc. No. 477, Ex. 28, Oct. 22, 2003.
From Oct. 23, 2003 to Sep. 15, 2004 The Harvard Crimson carried 22 news articles about sophomore Mark Zuckerberg. Only Bill Clinton and George Bush received more mentions. Al Franken received 16, Google 14, Microsoft 10, Bill Gates and Pope John Paul II 3 each. By comparison, the two other facebooks at Harvard, namely the Winklevoss Twins' ConnectU and Aaron Greenspan's houseSYSTEM, received 4 mentions each. What follows are links to the 22 articles.

Oct. 23, 2003, S.F. Brickman, Not-so-artificial Intelligence
Nov. 04, 2003, Bari M. Schwartz, Hot or Not? Website Briefly Judges Looks
Nov. 06, 2003, S.F. Brickman, Face Off - New web venture not so hot
Nov. 19, 2003. Katharine A. Kaplan, Facemash Creator Survives Ad Board
Dec. 09, 2003, David M. Kaden, College Inches Toward Campus-Wide Facebook
Dec. 11, 2003, The Crimson Staff, Put on a Happy Face
Feb. 09, 2004, Alan J. Tabak, Hundreds Register for New Facebook Website
Feb. 17, 2004, Amelia E. Lester, Show Your Best Face
Feb. 18, 2004, Alan J. Tabak, Harvard Bonds on Facebook Website
Mar. 01, 2004, Adam P. Schneider, Facebook Expands Beyond Harvard
Mar. 09, 2004, Leon Neyfakh, Columbia Rebukes thefacebook.com
Mar. 11, 2004, The Crimson Staff, Manifest Destiny, Facebook Style
Mar. 15, 2004, Matthew A. Gline, CrimsonPartiesHookupExchange.com
Mar. 18, 2004, Sarah E.F. Milov, Sociology of thefacebook.com
Mar. 19, 2004, Anastasios G. Skalkos, New Online Facebook Launched
May 07, 2004, M. Grynbaum, Online Facebook Solicits New Ads
May 28, 2004, T.J. Mcginn, “Online Facebooks Duel Over Tangled Web of Authorship
Jun. 10, 2004, Elena Sorokin, Internet Boosts Social Scene
Jun. 10, 2004, M. Grynbaum, Zuckerberg ’06: The whiz behind thefacebook.com
Aug. 13, 2004, Alan J. Tabak, Zuckerberg Programs New Website
Sep. 13, 2004, T.J. Mcginn, Lawsuit Threatens To Close Facebook
Sep. 15, 2004, The Crimson Staff, Facing Off Over The Facebook

Leader's patent first published on June 24, 2004. Mark Zuckerberg testified in ConnectU that the "groups functionality" was programmed into Facebook during the summer of 2004 by "Steven Dawson Haggerty." The Harvard Crimson says Facebook became much more popular with users of the "Groups" were introduced. Mark Zuckerberg ConnectU Deposition, Apr. 25, 2006, Tr. 90:11-91:18.
Also "by the end of the summer" (NOTE: this is at the same time as the Leader patent "groups" disclosure), Peter Thiel invested $500,000 in Facebook according to an Accel press release.
Accel Partners' CEO James Breyer invested $12.7 million in April 2005 and became a Facebook board member while also serving on the Board of the Associates of the Harvard Business School, and serving as the former chairman of the Harvard Business School California Research Center. According to an Accel press release, Mr. Breyer said in a Stanford Business School interview that he did not meet Mr. Zuckerberg until the fall of 2004 at Palo Alto's Village Pub after Mr. Zuckerberg moved to California.
Facebook's defense relied solely on discrediting inventor Michael McKibben as its evidence of early commercial activity. Facebook provided no expert testimony, no source code, no engineering documents, no Leader engineer testimony, no third party testimony. Leader Opening Brief, Jul., 25, 2011, p. 16; also available at Leader.
Facebook's attorneys admitted to the judge that they could not meet their burden without getting access to Leader's source code. However, after being granted access to login to Leader2Leader and access to the full Leader source code, Facebook produced no Leader source code at trial to prove the early commercial activity. Leader inventor Michael McKibben says that is because the programmer notations in the Leader source code prove they are wrong. Leader Press Release, Jul. 26, 2011.

Aaron Greenspan, the creator of one of the rival facebooks at Harvard called houseSYSTEM had this to say about the uncanny "student-rebel-hero" coverage that fellow geek Mark Zuckerberg received:

"The Crimson would run a front-page article on Mark and his site . . . The coverage was always the same and unequivocally positive . . . It was as if 14-year-old girls (with bad vision...) had taken over the newspaper on Plympton Street." Authoritas, Think Press, p. 292.

Dubious Origin Stories

The various Facebook origin stories are suspect. Mr. Zuckerberg testified in ConnectU that he alone built the Facebook site in "one or two weeks" while studying for finals in January 2004. A reasonable programmer knows that this claim is not credible, and wildly so. He testified that he never saw Leader's white papers, although the similarities are mathematically impossible without copying.

A reasonable person also sees the evident presence of an influential business figure behind the scenes—someone with an impressive ability to affect the news coverage priorities of The Harvard Crimson. No such influential person has ever been identified in the Facebook creation stories. According to the Accel Partners' press release cited above, no West Coast venture capitalists with influential Harvard contacts knew Mr. Zuckeberg at the time of the The Harvard Crimson coverage.

A reasonable person can see that without business and media help, hacking, theft, co-opting of the facebook ideas floating around campus, and copying of Leader's white papers, Mr. Zuckerberg alone could not have started Facebook on Feb. 4, 2004 while taking a full class load.

* * *

4. Facebook’s trial conduct

2011-08-26T14:37:00.000-07:00

Opinion: One blogger's perspective

Leader won all verdicts where the playing field was even

Facebook slipped in changes to the "on sale bar" jury instructions that misstated the law and confused the jury

On the claims in Leader Technologies, Inc. v. Facebook, Inc., 08-cv-862 (D.Del. 2008) where the playing field was even, Leader won the verdicts, namely that Facebook "literally infringes" 11 of 11 Leader patent claims and that no published prior art exists. See Leader v. Facebook Jury Ballot.

On the claim of invalidity for "on sale bar and public disclosure" Facebook prevailed on the jury verdict which said that Leader had offered the invention in a commercial offer for sale more than twelve months before the priority date. USC 102(b). However, the playing field was not even, and the facts do not support this claim.

Facebook added the early commercial activity claim just three months before trial, after the close of all discovery; the new judge had only been on the job a few weeks

Just three months before trial, after the close of discovery, Facebook added their 35 U.S.C. 102(b) early commercial activity claim into the case, over Leader's objection of prejudice. Leader Opening Appeal Brief, p. 9.

Leader had no opportunity to prepare defenses

This meant that Leader had no opportunity to prepare its defenses with things like additional discovery, expert witnesses, testimony from the alleged recipients of the offers, source code, engineering records, and programmer testimony.

Leader has stated publicly that the programmer notations in its source code prove that Facebook is wrong. See Leader Press Release. Tellingly, Facebook knew this since it had petitioned the trial court six months earlier for access to Leader's source code. So presumably, if Facebook had found that Leader's source code supported their 102(b) claim, they would have paraded it before the jury. They did not. See Appeal Brief, p. 19.

However, since discovery had closed and the trial evidence had already been submitted to the court, Leader had no procedural chance to submit its source code into evidence in order to defeat this claim.

No testimony from the alleged recipients of the offers; no expert testimony analyzing the alleged offers; the no-reliance clause in the Leader non-disclosure agreements discredits Facebook's on sale bar claim

The docket shows that Facebook did not conduct a single deposition with any of the alleged recipients of the early commercial offers, namely The Limited, Boston Scientific, Wright Patterson Air Force Base. See Leader v. Facebook docket.

Leader's non-disclosure agreements contained a special provision called a "no-reliance" or "no legal effect" clause that specifically prevents preliminary discussions from being construed as offers. The Uniform Commercial Code ("UCC") recognizes such agreements between parties. See Restatement (Second) of Contracts, §21 (agreement not be be legally bound); See also Leader Renewed Motion for Judgment as a Matter of Law, p. 17, fn. 5; Leader JMOL Reply Brief, p. 7.

Facebook added convoluted jury instructions about secrecy and non-disclosure agreements that the court approved

To confuse this legal matter even further, Facebook proposed and the trial court approved a number of changes to the model jury instructions for patent cases. Leader objected to all these departures from the norm. Facebook made convoluted changes discussing secrecy and non-disclosure agreements when the model instructions make no mention of non-disclosure agreements and secrecy. See Uniform Jury Instructions for Patent Cases, United States District Court for the District of Delaware, 4.5 ON SALE STATUTORY BAR (PDF pp. 60-61).

Facebook's changes to the model jury instructions included two references to secrecy and non-disclosure agreements, namely:

"However, it is irrelevant whether or not the offer for sale was secret or non-secret;" and
"An offer to sell can invalidate a patent even if the offer was secret, such as under the protection of a non-disclosure agreement." Final Jury Instruction No. 4.7, ON SALE BAR, pp., 41-42.

These changes confused the jury to a chilling effect when considering that the "protection of a [Leader] non-disclosure agreement" in its no-reliance clause specifically negates the possibility of an offer for sale.

The jury can be forgiven for not knowing these intricacies in patent and contract law. Unfortunately many judges and attorneys have an inadequate grasp of the UCC, and an even fewer know about the the Restatement (Second) Contracts and its "no legal effect" provision. This trial appears to have suffered dramatically from this ignorance. See MBIA Ins. Corp. v. Royal Indem. Co. at 210 (Unambiguous written agreements should be enforced according to their terms, especially between sophisticated parties).

A reasonable person can see that Facebook knew the no-reliance clause destroyed their on sale bar argument, so they set out to neutralize its legal effect with more "dark arts" to confuse the jury, and the law on the subject.

The bottom legal line is simple: The no-reliance clause in Leader's non-disclosure agreements kills Facebook's on sale bar claim, as a matter of law.

Facebook's expert proffered bad science

In an evident attempt to perfect a trifecta of jury confusion, Facebook's invalidity expert Dr. Saul Greenberg offered erroneous science regarding Leader's provisional patent disclosure. In order for Facebook to put its early commercial activity claim in play, it first had to knock out Leader's earlier provisional patent priority date of Dec. 11, 2002. Therefore, Facebook needed to prove that the invention disclosure in the provisional patent application was somehow deficient. Dr. Greenberg claimed that the provisional disclosure did not anywhere disclose the presence of a "tracking component." The prima facie evidence disproves Dr. Greenberg's testimony, but worse, he used bad science to prove his point.

Dr. Greenberg's methods violated the principle of bivalence by asserting that two diametrically opposed truths were both true. This bad science formed the basis of his testimony. Therefore, as a matter of law, his testimony must be dismissed. His testimony had a chilling effect on the jury's assessment of the facts, and was the only testimony at trial that the provisional patent did not disclose the tracking component. Leader's expert witness Dr. James Herbsleb showed multiple instances of the tracking component.

For a fuller analysis of Dr. Greenberg's expert testimony, go to another entry in this blog series titled "Expert witness practices "dark arts."

In lieu of hard evidence. . .

Facebook goal was to concoct a trial story that inventor Michael McKibben admitted in an "inventor's admission" that the Leader2Leader brand has always contained the invention. He did not, as the record shows.

Fig. 1: Rube Goldberg gadget to sharpen a pencil.
Linked from: www.rubegoldberg.com
Click here to enlarge.

Rube Goldberg would be proud

Rube Goldberg's cartoons are famous for depicting convoluted gadgets. See Rube Golberg gadgets.

Facebook's Rube Goldberg gadget for Leader v. Facebook included the following components. We have written on these elements in previous posts, so they will only be summarized and cited here.

Elements of Facebook's fabricated trial story are: (1) No infringement, Leader v. Facebook Jury Ballot, Mark Zuckerberg used Leader white paper to build Facebook; (2) Misdirection, Missing Documents; (3) Sandbagging, Facebook’s "court room theater;"; (4) Fabrication, No evidence? No problem. Fabricate it.; (5) Innuendo, Facebook's "I'm tired" tactic; Patent Office records disprove Facebook; (6) Unreliable science, Expert witness practices "dark arts;" (7) Confuse the law, Patent Office records disprove Facebook, Facebook's "I'm tired" tactic, No evidence? No problem. Fabricate it., and Facebook's trial conduct.

The trial court erred in allowing Facebook's new claim so close to trial

Trial courts are not permitted to allow new claims to be added to a case if adding those new claims prejudices or surprises the party against whom they are asserted, are likely to disrupt the trial, the prejudice cannot be cured before the trial starts, and other factors. See Meyers v. Pennypack; Federal Rules of Civil Procedure 37(c)(1) ("If a party fails to provide information . . . as required by Rule 26(a) or 26(e), the party is not allowed to use that information . . . to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.").

Facebook's amended claim after the close of written discovery and depositions, prevented any possibility for Leader to introduce its source code, engineer testimony, testimony of the parties alleged to have received the offers, and prepare an expert report to defend against the claim. Leader objected.

Facebook plied more "dark arts," and the court did not stop it. "Judicial discretion" is usually the reason appeals courts do not overturn such trial court decisions, but perhaps this case should be an exception.

Attorney Rules of Professional Conduct

Attorneys are called upon to zealously represent their clients within the bounds of the law, but are not called upon to breach their ethical duties to achieve them. See American Bar Association, Model Rules of Professional Conduct.

Respect: “A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials.” Id., Preamble [5].
Improvement: “As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession.” Id., Preamble [6].
Confidence: “a lawyer should further the public's understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.” Id.
Public Interest: “The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar.” Id., Preamble [12].

Paraphrasing Leader's argument about the efficacy of the "clear and convincing" evidence standard of invalidity,[1]

if the Rules of Professional Conduct are to be anything more than an empty semantic exercise, a serious review of conduct in this case may be called for.

* * *

Footnotes:

[1] "If requiring clear and convincing evidence of invalidity is to be 'more than an empty semantic exercise,' it must mean that the jury's verdict here cannot stand. Addington v. Texas, 441 U.S. 418, 425 (l979) (quotations and citation omitted)." Leader Opening Appeal Brief, p. 37-38.

8. Expert witness practiced "dark arts"

2011-08-23T15:45:00.000-07:00

Opinion: One blogger’s perspective

Facebook's expert witness Dr. Saul Greenberg claimed not to know the purpose of basic web programming functions; flip-flopped from "wild guess" to learned opinion

Trial courts have a duty to disqualify unreliable science to prevent jury confusion

Unreliable science was presented by Facebook’s expert witness in Leader Technologies, Inc. v. Facebook, Inc., 08-cv-862-JJF/LPS (D.Del. 2008). This bad science appears to have confused the jury. Indeed, it would confuse experts since it needs a Venn diagram to figure out that the opinions are ambivalent. The court failed to catch it, allowing Facebook's "dark arts" to turn the case toward their early commercial activity claim—a claim added by Facebook only after the close of discovery. The untimely-filed claim prevented Leader from gathering evidence to defend against it. Leader Opening Appeal Brief, p. 9; also available at Leader. With no hard evidence itself of early commercial acitivity, Facebook created more jury confusion with an attack on the credibility of the inventor; conduct better suited to an episode of Law & Order.

A well-known "dark arts" tactic in patent infringement trials is for the infringer to find an expert witness willing to mislead the jury. Since a lay jury cannot assess the reliability of the science presented, it is the duty of the trial court to disqualify unreliable expert testimony. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579 (Supreme Court 1993) at 595-597 (the trial judge must ensure the reliability of scientific testimony).

"Dark arts" tactics include lying, misleading, bad science, motion practice (delay), twisting words, bad lighting, deception, sandbagging, procedural tricks, fishing expeditions, trick questions, slander, misdirection, innuendo, pontificating, feigning mistakes, fawning, intentional bumbling, fabrications, legalese, obfuscation, dishonesty, manipulation, condescention, destruction of evidence, insipid flattery, making contradictory claims, intentional confusion, pandering, doctored evidence, planting evidence, threats, witness intimidation, trial theater, juror tampering, political manipulation, and late claims.

On the subject of the provisional patent, Facebook's expert witness was Dr. Saul Greenberg, professor of computer science at the University of Calgary. Leader's expert was Dr. James Herbsleb, professor of collaborative science at Carnegie Mellon University. Both men are prolific technology writers and both are recognized in the field of science addressed by Leader's U.S. Patent No. 7,139,761.

Facebook wanted to have its cake and eat it too

Facebook asserted contradictory positions that would certainly confuse a jury. The jury opened the door to Facebook's "on sale bar and public disclosure" claim only after it decided not to recognize Leader's earlier provisional patent application date of Dec. 11, 2002.

Facebook's assertions are illogical. They claimed ambivalently that: (1) the provisional patent did not disclose an invention "ready for patenting" (consistent with its false marking claim) and (2) the technology did contain the invention, was "ready for patenting," had been offered for sale, and had been disclosed in element-by-element detail to alleged offerees prematurely (antithetical to its false marking claim). Tellingly, no offeree testimony, no source code, no technical documents, no expert witness testimony was presented. See No evidence. No problem. Fabricate it.

Put in layman's terms, Facebook accused Leader of disclosing all the elements of the invention to sales prospects, while simultaneously not disclosing all those same elements to the Patent Office where its rights could be protected. Illogical positions are always confusing until the aim function becomes clear.

Department of the "Dark Arts"

Facebook's "dark arts" department apparently figured it could not lose by asserting contradictory positions on the theory that the jury would be confused and likely let one of them through. In other words, Facebook wanted to have its cake and eat it too, and the jury obliged.

Even so, Leader argues that Facebook failed to present any evidence of this alleged early commercial activity. Nevertheless, alleged early commercial activity is not the focus of this blog posting. This posting focuses on Facebook's allegation that the provisional patent did not disclose a "tracking component." Dr. Herbsleb said that it did and gave multiple examples, including a blind-study write-up by one of his students showing that he understood that a tracking component was indeed disclosed by the provisional application.

User tracking

Web browsing cannot work without at least basic user tracking. When one goes to a website, a special program tracks one's movement. Otherwise, one could not navigate from web page to web page. Programmers call your visit to a website a "session" and your location at any given time while on that site a "state." Every beginning web programmer learns this. Dr. Herbsleb Testimony, Trial Tr. 11326:7-8 ("It is well-known that this is the purpose of session state libraries").

First answer: "Wild guess"

On the other hand, Dr. Greenberg said he would be making a "wild guess" as to the purpose of the Java "import statements" in the provisional application. Trial Tr. 10903:10; See Leader Provisional Patent, p. 11. (Java is a popular web programming language developed by Sun Microsystems.)

Second answer: Dr. Greenberg described the contents of the "wild guess" box that he had just said was empty

However, just a few minutes later he contradicted that statement by "using my knowledge of programming" to describe the detailed actions of one of those import statements. In other words, Dr. Greenberg could later understand what he could not earlier understand. Trial Tr. 10904:8-10905:15.

For example, Dr. Greenberg provided detailed opinion about a generally understood element of the "actions" import statement, namely "action.addactionlistener," after having just finished saying he had no idea what could be in any of the import statements. This is not reliable scientific opinion. Tellingly, he was not similarly able to explain the generally understood user tracking purpose of a "sessionstate" import statement, and that code in the provisional application like "requestState.getCurrentUser( ).getId() );" would necessarily be tracking user movement. In fact, he went out of his way to say a flat "No" when asked if the provisional patent discussed user tracking. Id., Tr. 10905:16-24. Even an ordinary layman can read "CurrentUser" and "getId" and is about a user. And, an ordinary Java programmer knows that "State" tracks a user's movement from web page to web page. Id. 10903:14-10904:15; Leader Provisional Patent, p. 11-19.

At best Dr. Greenberg's answer is ambiguous since one cannot say credibly that one doesn't know what is inside a box, then proceed to describe its contents. Worse, Dr. Greenberg is obfuscating; counting on the jury being confused by the technical jargon. At worst, he is lying. None of these possibilities serves the purpose of an expert witness to assist the finders of fact in determining the truth.

The Federal Rules of Evidence 702, Testimony by Experts, states:

"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case."

"The sole justification and purpose of expert testimony is to assist the trier of fact to find a solid path through an unfamiliar and esoteric field." Thompson v. Merrill Dow Pharmaceutical at 241.

Dr. Greenberg failed to use reliable principles, and having failed there, did not apply reliable principles to the facts, and therefore failed to assist the trier of fact.

Exclude expert testimony that is not credible

The Federal Circuit Court of Appeals requires a trial court to exclude expert testimony that is not credible. Christophersen v. Allied-Signal Corp. at 1127 ("If the record establishes a critical fact contrary to the expert's testimony, or if a court may take judicial notice of a fact that fatally contradicts the assumptions of an expert, then his or her testimony ought to be excluded").

Mathematically speaking, Dr. Greenberg violated the principle of bivalence— stating two contradictory truth values when only one can be true. Dr. Greenberg is not permitted to first say a box is empty, and then proceed to describe its contents. That is like saying the lake is empty, but my swim in it was refreshing. A reasonable person knows that one cannot swim in an empty lake.

An opinion founded upon a wild guess is not credible, or reliable; Dr. Greenberg's testimony confused the jury

Dr. Greenberg's expert testimony confused the jury, who as a result invalidated Leader's earlier provisional priority date. Had that date been affirmed, then the entire early commercial activity claim would have been moot.

No requirement that a provisional application must "work"

Dr. Greenberg's testimony contains numerous misconstructions of the law with regard to the disclosure requirements of a provisional patent. For example:

DR. GREENBERG: "First, I have to say I don’t know if the code exists. I can't tell if this code is working code. Is it actually code that they've actual compiled to run? I don’t know." Trial Tr. 10902:13-16.

The law makes no requirement that software provisional patents contain "working code." In fact, the law asks the patentee to exclude those elements that are well known in the art. Therefore, by the very nature of the U.S. Patent Office ("USPTO") instructions, no disclosure will actually "work" as Dr. Greenberg implies that it should. This would certainly confuse the jury. It is not Dr. Greenberg's role to interpret law to the jury. The trial court erred in not correcting this legal error. See MPEP 2164.01 ("A patent need not teach, and preferably omits, what is well known in the art").

Therefore, contrary to Dr. Greenberg's erroneous implications about the legal requirement, Leader had no requirement in law to disclose the general nature of tracking user movement on a website, and the court failed to tell this to the jury. Leader's disclosure duty was to disclose the innovative element(s) of what is being tracked, which Leader did disclose, namely "webs" and associated multiple "contexts," among other things. See Leader Provisional Patent; See also full trial record on infingement where there was a robust "battle of experts."

USPTO instructs inventors not to disclose menial tools

DR. GREENBERG: "I can’t tell is whether these files com.leader.util or debug [or "actions" or "sessionstate"], whether they exist or not. I have no idea whether these are just place holders or if they have stuff there." Id., Tr. 10902:44-10903:4.

DR. GREENBERG: "the actual stuff in these things designated by the import isn’t there. They did not deliver that. I've read other patent applications, other things, before and sometimes they come with a floppy or CD that says, here’s our stuff. For one, this is all I have to work with. I would be guessing." Id., Tr. 10903:14-22.

Since the USPTO asks inventors not to submit elements of an invention that are well known in the art, programming elements like "debug," "util," "actions" and "sessionstate" should not be included in the disclosure of a web application. See MPEP 2164.01 above; See also Matter of Application of Sherwood at 817 817 ("If these bridge-gapping tools are disclosed, there would seem to be no cogent reason to require disclosure of the menial tools known to all who practice this art").

DR. GREENBERG: "Com.leader.util, maybe that means there's a utility program in it, but there’s another one called asp.facebook.util [sic], so I don’t know what's in it. I just make a wild guess." Id., Tr. 10903: 6-10.

Programmers of ordinary skill know the general purpose of web-based utility import statements. Therefore, this statement is not credible. Dr. Greenberg's public writings reveal that he knows that "session state" tracks a user. Indeed, the entire computer industry knows this.

Dr. Greenberg knew the purpose of "sessionstate"

Dr. Greenberg's public writings show that he is being disingenuous and in fact knows the purpose of common import statements. For example, he wrote about "sessions" and "tracking over pages" in 1999 in a National Institute of Standards paper titled "Getting Back to Back: Alternative Behaviors for a Web Browser Back Button." He also recommended a Java program named ArgoUML (See also ArgoUML JavaDocs) in a Western Computer Graphics Symposium paper in 2000 that specifically describes a "buildTransition" web session program as "Build a transition between a source state and a target state" (emphasis added). One is hard-pressed not to understand that this describes user movement from a source web page to a target web page.

The computer industry knows the purpose of "session state"

The prestigious SANS Institute published a presentation in 2002 titled “State maintenance in Web applications” which says "State maintenance (also known as session maintenance, or session state) is a familiar issue for Web programmers" (slide 3) (emphasis added). Sun Microsystems, the developer of Java, stated in "Maintaining Client State" in 2002 that "the applications are responsible for maintaining such state, called a session" (emphasis added). The Microsoft Computer Dictionary defines "session state" saying "In the Java programming language… a session bean. . . can. . . maintain conversational state across methods and transactions. . . [and] manages this state."

One cannot have knowledge of something for which one has previously abjured knowledge; Dr. Greenberg transformed a "wild guess" into a detailed explanation "using my knowledge of programming"

Dr. Greenberg should not have been permitted to confuse the jury with bad science by first saying he couldn't give any opinion about the Java import statements in the provisional patent, then proceed to give an opinion on the parts of the disclosed code that would support his storyline.

MS. KEEFE: "I'd like to point your attention to the middle of the page where it says action.addactionlistener. Do you see that code?"

DR. GREENBERG: "I do."

MS. KEEFE: "What does that code do?"

DR. GREENBERG: ". . . I believe in looking at this and using my knowledge of programming that what this essentially does is really [sic] the user interface part for somebody to manually set the relationship of one board to another. [Dr. Greenberg then proceeds to give quite a detailed assessment of what the code does]." Id., Tr.10904:8-10905:15.

The "dark arts" smoking gun "No"

MS. KEEFE: "Does anything in this disclosure [disclose] tracking a user’s movement from one board to another board?"

DR. GREENBERG: "Neither is it in this code and nowhere else in the code."

MS. KEEFE: "Does anything in this code disclose tracking a user’s movement from one context to a separate context?"

DR. GREENBERG: "No." Id., Tr. 10905:16-24

This Dr. Greenberg testimony was the only testimony at trial that alleged that the Leader provisional patent did not disclosure a tracking component.

Trial court error—Dr. Greenberg’s testimony should have been disqualified as a matter of law—"Dark Arts" does not equal good science

The moment that Dr. Greenberg provided bad science the trial court should have disqualified his testimony. In effect, Dr. Greenberg proffered a detailed opinion about a "wild guess." This is not credible science. Juries must be able to rely upon the veracity of experts so that they can weigh the facts based upon credible scientific guidance from the expert witnesses.

Facebook's "Dark Arts" Perfected—MS. KEEFE: "Does anything in this disclosure [disclose] tracking a user’s movement;" DR. GREENBERG "No"

That was Dr. Greenberg's testimony. However, Dr. Herbsleb provided substantial testimony about what one of ordinary skill knew about the tracking component from the provisional patent disclosure. The evidence confirms Dr. Herbsleb's testimony, for example:

Tracking a user's movement is endemic to the disclosure:
"com.leader.osapplications.sessionstate Provisional Patent Application, p. 11.
Tracking a user’s movement is endemic to the disclosure:
"requestState.getCurrentUser( ).getId() );" Id., p. 13, 15, 16.
Tracking is implicit in the statement:
"[a]s users create and change their contexts, the files and applications automatically follow, dynamically capturing those shifts of context." Id., p. 6, 9.
A user tracking component is endemic to workflow automation:
"A > B > C is the workflow process we want to automate. We assign 3 different people to each item, Therefore A(l ,2,3) > B( 4,5,6) > C(7,8,9)." Id., p. 10; Lockwood v. American Airlines at 1572 (“the exact terms need not be used”).
Tracking users is implicit to the very name of the application “DYNAMIC ASSOCIATION OF ELECTRONICALLY STORED INFORMATION WITH ITERATIVE WORKFLOW CHANGES." Workflow disclosures occur 27 times in the provisional. Id., starting at p. 1; See also U.S. Patent Office (even the USPTO assumes user tracking as endemic to workflow in its publications).

Leader’s innovation over conventional tracking was its well-disclosed incorporation of "webs" and other context information into the tracking component. The incorporation of webs allowed the user to move between one context and another and the system was able to maintain knowledge of the user and his/her location. This innovation appears to have sparked the age of social networking.

The record discredits Facebook’s expert

Without Dr. Greenberg's testimony, the jury's decision to invalidate the earlier provisional patent application date of Dec. 11, 2002 should not stand as a matter of law. However, Facebook attorneys know that within their "dark arts" bag of tricks is the knowledge that dueling experts create a circumstance that the courts are hesitant to touch: dueling expert testimony. Once provided, it is difficult to argue that the jury got it wrong. So what do infringers do to introduce some evidence, any evidence, however dubious? They make it up. Then, once made up, it gets placed on the scales of justice along with the real evidence. Some evidence thus perfected, the Department of Dark Arts then goes to work to fool the jury. This is one of the dirty little secrets of patent law that has robbed many a patent holder out of his or her just reward.

However, in this case the record of Facebook's "dark arts" proves that: (a) the trial court erred in not disqualifying Dr. Greenberg's testimony the moment he used bad science, and (b) the prima facie facts show that one of ordinary skill knew that a tracking component was disclosed.

Dr. Greenberg rewriting law on provisional patent disclosure?

If the jury's decision to invalidate the earlier provisional patent date stands, it will establish a troubling precedent in which anything short of providing complete source code in a provisional patent application will be insufficient. The direct implication is that all provisional patents will have to be reduced to practice before they are filed.

In addition, a decision to affirm Dr. Greenberg's expert testimony could set in motion a requirement that provisional patents must actually "work" to meet the disclosure requirement.

Dr. Greenberg's uncorrected statement "I have no idea whether these are just place holders or if they have stuff there" implied that the Leader provisional patent application needed to have worked to be an adequate disclosure. This assertion is contradicted by In re Hayes Microcomputer Products, Inc. at 1534:

"an inventor is not required to describe every detail of his invention. An applicant's disclosure obligation varies according to the art to which the invention pertains. . . [and] is sufficient to satisfy the requirement of section 112, first paragraph, when one skilled in the relevant art would understand what is intended and know how to carry it out."

Was Dr. Greenberg's testimony "clear and convincing," a "mere scintilla," or null and void?

The Supreme Court stated in Anderson that it isn't good enough to have just a little evidence; stated in Munson that it is certainly not good enough to have no evidence; and re-affirmed the clear and convincing standard of proof in Microsoft v. i4i.

"The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient." Anderson v. Liberty Lobby, Inc. at 225.

"When a prayer for instruction is presented to the court and there is no evidence in the case to support such a theory it ought always to be denied, and if it is given, under such circumstances, it is error; for the tendency may be and often is to mislead the jury by withdrawing their attention from the legitimate points of inquiry involved in the issue." Schuylkill v. Munson at 448.

Dr. Greenberg's bad science disqualified his testimony as a matter of law. Therefore, since all the other evidence supported Leader's provisional patent priority date, the jury had no factual basis for invalidating the earlier date. A reasonable person can only conclude that the jury became confused by Dr. Greenberg's bad science and, per Munson, the court also confused the jury by diverting their attention from legitimate points of inquiry.

Leader states in its opening appeal brief that "if requiring clear and convincing evidence of invalidity is to be more than an empty semantic exercise, it must mean that the jury's verdict here cannot stand." Leader Opening Appeal Brief, p. 37; also available at Leader.

* * *

6. Facebook's "I'm tired" tactic

2011-08-19T11:51:00.000-07:00

Opinion: One blogger's perspective.

Attorney Michael Rhodes exclaimed "I'm tired" four times during his questioning of Leader inventor Michael McKibben, his only witness

Attorney Michael Rhodes, Facebook's lead litigator in Leader Technologies, Inc. v. Facebook, Inc., 08-cv-862 (D. Del 2008), expressed his tiredness four times during his trial questioning of Leader inventor Michael McKibben. Mr. McKibben was his sole witness for Facebook's on sale bar and public disclosure claim; claims that were allowed into the case after the close of discovery over Leader's objection of prejudice. Leader Opening Brief, p. 9-10; also available at Leader.

While questioning Mr. McKibben, Mr. Rhodes repeated four times:

"I'm tired."Trial Tr. 10704:2.

"I'm tired." Id., Tr. 10713:10.

"I'm getting tired, so they're trying to prod me." Id. Tr. 10757:18.

"I'm tired." Id. Tr. 10839:15.

Mr. Rhodes did not say he was tired at any other time

At no other time during the 9-day trial did Mr. Rhodes express his tiredness to the court. His sudden onset of tiredness during Mr. McKibben's testimony, coupled with the need for him to be prodded by fellow attorneys Heidi Keefe, Mark Weinstein, Samuel Citron O'Rourke and Ted Ullyo, would lead a reasonable person to believe that Mr. Rhodes was, in fact, stressed at being the point man in a Facebook attorney strategy to sandbag Mr. McKibben.

"I'm tired."

Mr. Rhodes is an experienced attorney-of-the-year litigator, so this sudden tiredness, and the need to be prodded, would indicate a level of uncharacteristic insecurity and stress. The Mayo Clinic identifies tiredness or fatigue as one of the key signs of stress. "Stress symptoms: Effects on your body, feelings and behavior," Mayo Clinic.

Probably the most telling proof that Mr. Rhodes' tiredness was actually stress and obfuscation is when he feigned tiredness to prevent Mr. McKibben from answering his rebuttal question about when Leader2Leader became a registered trademark ® (USPTO award date: July 29, 2003). Trial Tr. 10703:13-10704:2:

Q. It says Leader2Leader and then it
has a circled R. Do you see that?
A. I do.
Q. Does that mean there was a
copyright or trademark?
A. Registered trademark.
Q. Trademark.
So it was a registered trademark
at that point in time?
A. I'm not sure I had understand that
question.
Q. It was a bad question, wasn't it?
Didn't have a time period on it.
I apologize. I'm tired (emphasis added).

The pivotal element here is Mr. Rhodes' declarative question "So it was a registred trademark at that point in time?" Mr. McKibben asked for clarification, and Mr. Rhodes pleaded "I'm tired" and changed the subject. Leader's attorneys had no opportunity to follow up because Mr. Rhodes' question was in rebuttal. By not allowing Mr. McKibben to answer the question, Facebook's declarative question became fabricated evidence that "So it [Leader2Leader] was a registred trademark at that point in time" irrespective of whether Mr. McKibben answered the question, and despite the fact that Mr. Rhodes said it "[d]idn't have a time period on it."

USPTO answers Mr. Rhodes' question: July 29, 2003

Had Mr. McKibben been permitted to answer that question, Facebook's on sale bar and public disclosure sandbagging strategy would have died since the Leader2Leader trademark registration date of July 29, 2003 puts the Interrogatory No. 9 answer well past the critical date of Dec. 11, 2002. See U.S. Patent Office records disprove Facebook.

Who is "threading the needle?"

Ironically, Mr. Rhodes accused Leader five times in his closing argument of "thread[ing] the needle" to avoid on sale bar and public disclosure. See below. However, since Facebook presented no real evidence like source code, engineering documents, and expert testimony, one is hard-pressed not to conclude that Mr. Rhodes did indeed have "threading the needle" on his mind, but that it was Facebook who was threading the needle.

MR. RHODES' Closing Statement:

"thread this needle." Trial Tr. 11520:9.

"thread this needle." Tr. 11520:16.

"thread that needle." Tr. 11522:23.

"thread the needle." Tr. 11522:24.

"thread this needle." Tr. 11526:8.

Prodding

In fact, Mr. Rhodes' "I'm getting tired, so they're trying to prod me" was at a point in questioning Mr. McKibben where Leader developer Steve Hanna emails were presented. Tr. 10757:13-19. Facebook wanted to look at what Mr. Hanna wrote in a brief summary of company business activities regarding meetings Mr. McKibben had with Boston Scientific. However, a closer look at this email destroys Facebook's sandbagging because Mr. Hanna includes a schedule of engineering tasks that states that the beta testing of Leader2Leader, with release 1 of new invention included, would begin on Dec. 20, 2002, nine days after the critical date of Dec. 11, 2002. DTX-0776; Trial Tr. 10668:23; See also Trial Tr. 10760:13, 10762:20; 10822:13.

Leader NDAs had no-reliance clauses

All Leader documents submitted as evidence by Facebook contained a legal notice citing Leader's Proprietary & Confidentiality Agreement. That agreement contains a "no-reliance" clause stating that no discussions between the parties would have any legal effect. Leader's JMOL Reply Brief, p. 7 ("any alleged discussions of contractual terms would have 'no legal effect' pursuant to the non-reliance clause in Leader's NDAs. Group One, Ltd v. Hallmark Cards, Inc., 254 F.3d 1041, 1048 (Fed. Cir. 2001); see also, e.g., DTX 725A at LTI 155169; DTX 725 at LTI 149298, LTI 150931, LTI 151130, and LTI 151147"); See also Restatement (2nd) of Contract §21 (agreement not to be legally bound by preliminary discussions).

The Hanna evidence alone, introduced by Facebook, proves that Mr. McKibben's and Mr. Lamb's testimony was truthful and that the jury erred in succumbing to Facebook's court room theater regarding the no-legal-effect of Leader's business discussions.

Attorney arguments are not evidence

Mr. Rhodes appears to have been the one "threading the needle" to try and convert wholly attorney-orchestrated circumstances (re-engineered interrogatories, out-of-context deposition snippets, mere brand references, court room theater) into innuendo to sandbag Mr. McKibben's credibility. As the jury instructions said, attorney argument is not evidence (see above: Facebook's unanswered declarative question: "So it was a registered trademark at that point in time?"). Trial Tr. 11369:4-6 ("The lawyer's statements and arguments are not evidence").

* * *

5. Facebook's "court room theater"

2011-08-17T03:12:00.000-07:00

Opinion: One blogger's perspective.

The law requires hard evidence; not innuendo, ambiguous cartoons, trick questions, spliced video snippets and mere disbelief

Facebook's "clear and convincing" burden of proof in Leader Technologies, Inc. v. Facebook, Inc., 08-cv-862-JJF/LPS (D.Del 2008) requires hard evidence like source code, expert testimony, engineering documents, programmer testimony, not merely an ambiguous Interrogatory No. 9, cartoons, a video snippet spliced out context, and disbelief transformed into affirmative evidence. See Leader Opening Brief, p. 16; also available at Leader; See also Trial Tr. 11428:2-6. The hard evidence requirement is well-settled patent law. Pfaff v. Wells Electronics, Inc., 525 US 55 (Supreme Court 1998); Group One, Ltd. v. Hallmark Cards, Inc., 254 F. 3d 1041 (Federal Circuit 2001); Linear Technology Corp. v. Micrel, Inc., 275 F. 3d 1040 (Federal Circuit 2001).

Facebook's lead attorneys from White & Case LLP turned Cooley Godward LLP were Michael G. Rhodes, Heidi Keefe, Mark Weinstein and Samuel Citron O'Rourke (who apparently began this case as an attorney for White & Case LLP before becoming inside counsel at Facebook sometime after this case began, although the timing is unclear). Attorney Ted Ullyot joined Facebook during this case.

Deposition expert Daniel Dain describes what attorneys do to create evidence from video-taped depositions:

"While simply relating the truth is the witness’s best weapon, that may not be enough if the opposing [tricky] attorney extracts unintended and often inaccurate admissions." Daniel P. Dain. "Preparing to Take and Defend a Liability Deposition," James Publishing, §440.

From Mr. McKibben's video-taped deposition, Facebook emphasized only the second half of a two-part question. They emphasized: "[Q.] Can you identify any iteration of the Leader2Leader product that in your opinion did not implement what's claimed in the '761 patent? [A.] That was a long time ago. I -- I can't point back to a specific point." Trial Tr. 11517:7-12; 10841:14-19.

The first half of the two-part question was "Q. Did you have any technique for identifying differences between various iterations of Leader2Leader product?" A. I believe that our developers kept track of that . But the name they gave to it, I don't remember." Trial Tr. 10841:11-13.

Without the context of the first half, the second half read alone is ambiguous.

Naturally, once a deponent is asked a question about dates not remembered from long ago, that person might refresh his memory in preparation for trial. But here again, Facebook's attorneys used the refreshing of the mind as further innuendo, stating, "MR. RHODES: when he [Mr. McKibben] comes to court, he has a really good recollection, doesn't he? . . . He can point to a specific point now." Trial Tr. 11516:18-20; 11517:13-14.

Facebook's False Syllogism (A+B=C)

The court said the "evident finding" was the jury did not believe this answer, and was permitted to assume the opposite was true as "affirmative evidence." Leader Opening Brief, p. 23. The implications of this decision are chilling to the administration of justice. In this case, the supposed opposite of not remembering a specific point is that there was no point. Facebook's conclusion is a false syllogism.

A categorical syllogism has three parts: (A) the major premise, (B) the minor premise and (C) the conclusion. Facebook had no basis for drawing the conclusion that there was no specific point. Since Facebook skipped the (A) major premise, they had no foundation for their (C) conclusion. Their testimony snippet (B), as presented, lacked foundation to draw any logical conclusion whatsoever.

False Syllogism:
(A) Major premise—[Skipped]
(B) Minor premise—Mr. McKibben could not remember a specific point long ago. Trial Tr.10841:18-19.
(C) Conclusion—[There was no point.]

The logical conclusion cannot be drawn that an inability to remember a specific point means that there was no point. If Mr. McKibben's whole testimony on this topic had been presented, the context provided a natural syllogism and destroys Facebook's argument (which would explain why they chose not to present the first part of their two-part question):

Testimony Syllogism:
(A) Major premise—Leader's developers kept track of specific points. Trial Tr.10841:11-13.
(B) Minor premise—Mr. McKibben could not remember a specific point long ago. Trial Tr.10841:18-19.
(C) Conclusion—Leader's developers should be asked about a specific point (they weren't).

The only conclusion that could logically be drawn from Mr. McKibben's trial testimony on the subject of Leader2Leader is that his developers were the persons to ask about the specific point at which Leader2Leader first incorporated the '761 invention. Facebook was given access to Leader's source code and developers, and they could have presented expert testimony. Tellingly, they presented no such evidence. Leader Opening Brief, p. 16; also available at Leader.

The "clear and convincing" burden of proof in law is there to prevent such court room theater from obscuring the truth, for example:

"An evaluation of all pertinent evidence must be made so that a sound determination of the credibility of the inventor's story may be reached." Price v. Symsek, 988 F. 2d 1187 (Federal Circuit 1993) at 1195.

The law requires "disclosure to others or embodiment of the invention in some clearly perceptible form, such as drawings or model, with sufficient proof of identity in point of time." Price at 1194, citing Mergenthaler v. Scudder, 11 App.D.C. 264, 278-79 (D.C.Cir.1897) at 278.

Facebook provided no "evaluation of all pertinent evidence" in such "perceptible form, such as drawings or model," which, in this case, would necessarily be Leader's source code. As Leader states in the appeal brief, Facebook requested and was given access to Leader's source code, but presented none of it at trial to make its case for on sale bar and public disclosure. Leader Opening Brief, p16; also available at Leader. Inventor Michael McKibben said that is because the programmer notations in the source code prove Facebook is wrong. Leader Press Release, July 26, 2010.

* * *

9. Patent Office records disprove Facebook

2011-08-15T15:11:00.000-07:00

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 http://www.uspto.gov. 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.

* * *

3. No evidence? No problem. Fabricate it.

2011-08-15T13:54:00.000-07:00

Opinion: One blogger's perspective.

Misconstrued Jury Instruction

The Leader Technologies, Inc. v. Facebook, Inc. 08-CV-862-JJF/LPS (D. Del. July 27, 2008) trial record confirms Leader's appeal brief which said that Facebook focused solely on getting the jury to disbelieve inventor Michael McKibben in lieu of presenting hard evidence. Leader Opening Brief, p. 11-12; also available at Leader. Judge Stark's instruction to the jury said "it is your duty and privilege to believe the testimony that in your judgment is the most believable and disregard any testimony that [in] your judgment is not believable." Trial Transcript, Jul. 27, 2010, Tr. 11373:11-14.

However, Facebook's attorney Michael Rhodes said in his closing "And this jury instruction, I'd ask that you look at this because this is the instruction you have to look at to assess credibility. What it tells you is if there are parts of the story that are contradictory and inconsistent, you can ask yourself whether you want to leave the whole story. That’s what it says. That’s [Jury Instruction] 1.7" Id., Tr. 11526:11-18.

JUDGE STARK: disregard testimony not believed;
MR. RHODES: disregard the whole story

A simple read of English shows that Mr. Rhodes misconstrued the jury instruction. Did this confuse the jury? The instruction does not permit the jury to disregard "the whole story" if "parts" are disbelieved. Mr. Rhodes is ambiguous as to whether he is referring to Mr. McKibben’s testimony or all the trial evidence. Either way, Facebook does not meet its burden. If he refers to Mr. McKibben's testimony, then there is no other evidence. If he is referring to all the other evidence, then he is misstating the jury instruction, since the jury is not permitted to ignore the other evidence (and if there is no other evidence, then Facebook has not proved anything). The Court's Opinion that transformed the jury's "evident finding that Mr. McKibben was not testifying credibly" into "affirmative evidence" that the opposite is true has no support in law. Opinion 51; See also Leader Opening Brief, p. 23; also available at Leader. If the law allowed disbelief to become evidence, then no nervous witness who is telling the truth would be safe from innuendo and personal attack. Indeed, even simple pauses in answering a question might look bad and be enough to turn a jury's attitude.

Leader's opening brief states that Mr. McKibben could not remember when Leader2Leader first incorporated the '761 invention and that inability to recall past dates is not evidence that the opposite is true. Leader Opening Brief, p. 34; also available at Leader; See also "Facebook's court room theater." In fact, Facebook's JMOL opposition quotes this testimony out of context. Facebook quotes only the second part, starting with "[t]hat was a long time ago. I -- I can't point back to a specific point." Facebook contends that this was an absolute admission that Leader2Leader practiced the invention in 2002. Facebook JMOL Opposition, p. 7; See also Trial Transcript, July 23, 2010, Tr. 10841:14-19. However, what Facebook fails to quote is Mr. McKibben's previous statement that "I believe that our developers kept track of that. But the name they gave to it, I don't remember." Trial Transcript, July 23, 2010, Tr. 10841:8-13. In other words, Mr. McKibben testified that there was such a specific date that was kept by his developers, but that he couldn't remember it. Trial Transcript, July 23, 2010, Tr. 10841:8-10("Q. Did you have any technique for identifying differences between various iterations of Leader2Leader product?").

Mr. McKibben's video-taped deposition snippet is ambiguous at best, and at worst for Facebook, proves they are wrong. Either way, it does not meet the clear and convincing standard. And certainly, the jury was not free to create affirmative evidence of the ostensible opposite. What is the opposite of not remembering a specific point? No specific point? A specific point? Several specific points? A host of points? A sliding iteration of increasingly important points? The jury does not know and was not free, in law, to speculate. Therefore, their action must be legal error.

Old deposition trick: turn a video-taped pause into an accusation of lying

James Publishing's instructions to witnesses illustrates the no-win situation for witnesses regarding pausing before answering a question. On the one hand they counsel that a witness should not answer too quickly, and should pause to make sure he or she fully understands the question before answering (court stenographers generally do not document pauses). On the other hand James counsels that if you pause when being video-taped, your pause can look like you are being less than forthcoming, when in fact, you are simply following your attorney's deposition instructions to think before answering. Daniel P. Dain. "Preparing to Take and Defend a Liability Deposition," James Publishing. Since the jury was not shown Mr. McKibben's whole deposition, they could have no sense of whether Mr. McKibben paused before answering every question. Short of having access to the video tape, we'll never know since the deposition transcription did not document pauses. Hence, the wisdom of the jury instruction to disregard such testimony if not believed, and then to look for other hard evidence.

No evidence beyond innuendo

Why would Facebook rely solely on Mr. McKibben's testimony for evidence of early commercial activity (no source code, no expert testimony, no engineer testimony, no hard evidence)? That choice should have resulted in one of two possibilities, neither of which would be favorable to Facebook: (1) either Mr. McKibben testimony that there was no such activity was believed, or (2) Mr. McKibben was disbelieved and his testimony discarded. Facebook's desperation move seems to have relied upon phantom options 3, 4 and 5. They relied upon: (3) the jury disbelieving Mr. McKibben; (4) the jury transforming that disbelief into evidence that the opposite was true; and (5) the Court affirming that disbelief could be transformed into "affirmative evidence" of an ostensibly opposite phantom fact for which the only support is disbelief.

Resurrecting (what should have been discarded) evidence

The law and the jury instruction said that testimony not believed must be discarded. What happened at this trial is just the opposite. Leader Opening Brief, p. 24; also available at Leader; See also Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485 (1984) at 512. The court wrote that the "evident finding" is that the jury did not believe Mr. McKibben's testimony. Therefore, it should have been disregarded. Instead, in an apparent accommodation to Mr. Rhodes' alternative theory of jury instruction, the jury resurrected testimony it was instructed to disregard if not believed, constructed a new piece of evidence, and declared it "affirmative evidence" of early commercial activity. Leader asserts that this is legal error. Leader Opening Brief, p. 24; also available at Leader.

Cartoons, animations and e-Bay for Dummies

Facebook presented a lot of "cartoons and animations drawn up by lawyers." Trial Transcript, Jul. 27, 2010, Tr. 11445:9-10. However, Facebook's witnesses all said "I created some exhibits" but they were "exactly the same as the previous person." As Leader's attorney emphasized "[t]hey didn't create the slides. The lawyers created the slides." Id., Tr. 11445:9-21.

More importantly, Leader's attorney Paul Andre pointed out the absurdity of Facebook's witnesses, including their expert witnesses Dr. Michael Kearns and Dr. Saul Greenberg, showing cartoon illustrations of Facebook's code rather than their actual code. He said "They did use a lot of cartoons and animations. They showed a picture of the Facebook website and a fake photo table." Id., Tr. 11445:22-11446:5.

By contrast, Mr. Andre said "We [Leader] have you seven sources, source code, website, three types of documents. We showed you testimony of the engineers. We showed you the testimony regarding the applications." Id., Tr. 11450:24-11451:4.

Mr. Andre continued "They gave you dummies. That's it. E-Bay for Dummies. That's it. That's all the evidence they gave you. Their own testimony proves they infringe." Id., Tr. 11451:5-8.

Reinventing Interrogatory No. 9

In perhaps the most dramatic admission at trial, Facebook's attorney Michael Rhodes stated in his closing argument that:

“MR. RHODES: But now what they say is, you didn't ask the question correctly. You didn't ask me about the version in 2002, even though the purpose of asking the question is to figure out whether it did, so now they're dancing. Now they're dancing. This is 2009. Why? Because that's when I asked them the question, in 2009, and he swore to it under penalty of perjury.” Trial Transcript, Jul. 27, 2010, Tr. 11516:10-17.

This admission is critical because Facebook is admitting to having asked an ambiguous Interrogatory No. 9 question in 2009 whose answer they would reinvent at trial into an answer about the technology in 2002. Leader Opening Brief, p. 17; also available at Leader.

Mr. Rhodes was referring to Interrogatory No. 9 where Leader was asked in 2009 which Leader products practice (present tense) the invention. Id., p. 11, 17, 32, 33. Leader answered "Leader2Leader® powered by Digital Leaderboard®" At the time this question was asked of Leader, Facebook had not asserted a claim for early commercial activity. At that time Facebook was asserting "false marking" which essentially claims that Leader never invented anything. Facebook did not add early commercial activity (35 U.S.C. 102(b)) claims until after the close of discovery, giving Leader no opportunity to prepare its defenses. Id., p. 21, 22.

Therefore, Mr. Rhodes was admitting that Facebook had an improper purpose in asking Interrogatory No. 9. He was admitting that Facebook intended all along (MR. RHODES: "the purpose of asking the question is to figure out whether it did") to create evidence of early commercial activity in 2002 from an admission about the technology in 2009. Leader argues that "Leader had no duty to anticipate defenses that Facebook had not yet raised."Id., p. 33. Leader explained that the brand name was a container in which all inventions were placed, so its contents changed over time, as new components were created.

It would appear that Mr. Rhodes trial conduct confused the jury. The law and the jury instruction said that attorney argument, while it may have been effective court room theater, is not evidence. Id., p. 23.

Burden of Proof Never Shifted to Leader

Facebook's argument in support of the verdict for early commercial activity relies completely on Mr. McKibben's disbelieved testimony and Interrogatory No. 9. In fact, Facebook asserted that "Mr. McKibben did not, for example, identify a single facet of Leader2Leader that underwent any change in 2002 (or at any other time)." Facebook Opposition to JMOL, p. 9. However, Leader argues that the clear and convincing burden of proof to prove early commercial activity pursuant to 35 U.S.C. 102(b) (element-by-element) was Facebook's and that burden never shifts to Leader. Leader Opening Brief, p. 21; also available at Leader; See Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348, 1359 (Fed. Cir. 2007). (To find this legal reference, click on the Pfizer link, then look for sections "1348" and "1349" on the left. The cited law will be in that section.)

See also Facebook's court room theater.

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7. Missing Facebook Documents

2011-08-13T08:10:00.000-07:00

Opinion: One blogger's perspective of the public record.

Six months of discovery delays

Facebook dragged its feet on discovery throughout the first six months of 2009. For example, Facebook would say they would not provide a document, but when Leader filed a motion to compel the document, Facebook would then provide the document in their opposition to the motion—the very document that they had just said they would not provide. Leader had provided two-and-a-half times more documents to Facebook than Facebook provided to Leader. Judge's Conference, May 28, 2009, Tr. 1062:12-24.

"I don’t want Facebook to be trashed . . . I love my company"

Facebook counsel Heidi Keefe's argument for giving Leader limited access to Facebook's documents was "I don’t want Facebook to be trashed." Judge Farnan replied "Don't be so defensive," to which Ms. Keefe responded "I love my company." Id., Tr. 1063:18-23.

Ms. Keefe's affection for her client aside, Facebook's discovery document preparation was further clouded by the appearance of a new inside counsel at Facebook who was simultaneously working for Facebook's outside counsel—a move that coincides with Facebook's inability to produce documents from its formative years of 2004 and 2005. California Legal Ethics, Cornell Univ. Law ("zealousness requires an attorney to represent his client to the best of his ability, but it does not require that he become insurer of either his client's self-esteem or his public reputation").

Dates

Attorney Samuel Citron O'Rourke is currently Deputy General Counsel, Intellectual Property at Facebook. See Sam O'Rourke LinkedIn Profile. Prior to joining Facebook Mr. O'Rourke was a colleague of Facebook's Leader v. Facebook outside counsels Heidi Keefe and Mark Weinstein at the law firm of White & Case LLP. Attorney Ted Ullyot joined Facebook during this case.

Mr. O'Rourke’s current LinkedIn profile page states that he joined Facebook in May 2008. Id., May 2008. However, court records in HTC Corp et al v. TPL et al, 08-cv-00882-JF (CA ND Feb. 27, 2009) show that he did not leave White & Case LLP until at least February 27, 2009 where he had been co-counsel with Mark R. Weinstein until being withdrawn by Mr. Weinstein—nine months later. To add to the confusion, Mr. O'Rourke was also co-counsel with Heidi Keefe and Mark Weinstein in the firm of Cooley LLP in Cross Atlantic Capital, Inc. v. Facebook, Inc., 07-CV-02768-JP (CA ND Jan. 19, 2011) and remained so until being withdrawn by Ms. Keefe on January 19, 2011. To insure that these records were not simply untimely clerk filings, the court pleadings in Acer, Inc. et al v. TPL, et al, 08-cv-877-JF (CA ND Oct. 21, 2008) show that Mr. O'Rourke was indeed an active counsel of record at White & Case LLP along with Mark Weinstein late into 2008.

Engagements

On the surface Mr. O'Rourke's LinkedIn page would lead one to believe that his tenure as inside counsel at Facebook pre-dated the Leader v. Facebook lawsuit, which commenced on Nov. 19. 2008. However, numerous federal court records indicate that he did not join Facebook until sometime in early 2009—timing which coincides with the Leader v. Facebook discovery disputes and would place him in the center of the obfuscation that triggered Leader's motion to compel.

The ambiguous nature of Mr. O'Rourke's status creates equally ambiguous legal questions as to whether or not attorney-client privilege would apply to Mr. O'Rourke's insider activities during Leader v. Facebook discovery. Heidi Keefe did not withdraw Mr. O'Rourke from the Cross Atlantic Capital v. Facebook case until Jan. 19, 2011. See link above. Technically speaking, since Mr. O'Rourke was still Facebook counsel for White & Case LLP (later replaced by Cooley LLP) in Cross Atlantic, Ms. Keefe could make an argument that Mr. O'Rourke's actions during Leader v. Facebook discovery were attorney-client privileged, and therefore not subject to discovery, deposition or subpoena, even though he claimed to be a Facebook insider simultaneously.

Musical Chairs

On Sep. 4, 2009, almost a year into the Leader v. Facebook lawsuit, Heidi Keefe and Mark Weinstein changed firms to Cooley Godward LLP and brought the Leader v. Facebook, 08-cv-082-JJF/LPS (D.Del. Sep. 4, 2009) lawsuit with them. See also Cooley Press Release, Aug. 31, 2009. Attorney Michael Rhodes who was already at Cooley, later became the trial litigator in Leader v. Facebook. See Law.com, Dec. 01, 2009. On the subject of Facebook user security and privacy, it is Mr. Rhodes who stated to the jury in his closing argument:

"There's 500 million of you people out there. We can't control it.
All we can do is react after the fact."

Michael Rhodes, Facebook, Trial Transcript, Jul. 27, 2010, Tr. 11479:7-9.

Who worked for whom, and when?

The public record is silent on exactly when Mr. O’Rourke joined Facebook as inside counsel. Facebook issued no customary press release for his hiring. Instead, he just appeared. The record is also unclear as to exactly who he worked for. Court records indicate that he worked for his former bosses Heidi Keefe and Mark Weinstein even after he went inside at Facebook and was ostensibly managing them.

Insider? Outsider? Insider-Outsider?

More Questions than Answers

These facts raise more questions than answers. Why didn’t Facebook announce Mr. O'Rourke's hiring in a manner similar to other Facebook hiring announcements like Chief Legal Counsel, Ted Ullyot's? See Cnet, Sep. 29, 2008; LA Times, Sep. 29, 2008.

Once inside, and presumably with the keys to the document vault, what did Mr. O'Rourke do to facilitate the discovery of documents for the 2004 and 2005 Facebook formative years? What happened that eventually led Facebook to claim that they had no 2004/2005 documents? What was Mr. O'Rourke's role in collecting and processing these documents? Why was his arrival at Facebook unannounced for many months? Why is his early history at Facebook unknown? To whom did he report? Who knew about his early activity? What part did he play in the discovery delays? Since it is not reasonable that no 2004/2005 documents were available, were they destroyed? Why does he say on his LinkedIn profile that he joined Facebook in May 2008 when it appears that he actually joined sometime after February 2009? Is the LinkedIn date a typo? What did Facebook do with its 2004 and 2005 documents to prevent spoilation? See Footnotes [1][2]. Since there were multiple lawsuits against Facebook prior to Leader v. Facebook, weren't all Facebook documents locked down long ago? What prompted his former boss Heidi Keefe's "I love my company" emotional outburst in front of Judge Farnan during the discovery hearing?

Perhaps there are good answers to these questions, but the questions keep piling up.

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Footnotes

[1] Bruzzano, Melissa A,. "Spoilation of Evidence in California," 24 Sw. U. L. Rev. 123 (1994-1995). Accessed Aug. 13, 2011 <http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/swulr24&div=10&id=&page=>.

[2] Richard E. Best. "Discovery of Electronic Data. Electronic Discovery Law. 2004. Accessed Aug. 14, 2011 <http://california-discovery-law.com/electronic_discovery_sanctions_spoliation.htm>.