Just three months before trial, after the close of discovery, Facebook added their35U.S.C. 102(b)early commercial activity claim into the case, over Leader's objection ofprejudice.Leader Opening Appeal Brief, p. 9.
Leader had no opportunity to preparedefenses
This meant that Leader had no opportunity to prepare its defenses with things likeadditional discovery, expert witnesses, testimony from the alleged recipients of theoffers, source code, engineering records, and programmer testimony.Leader has stated publicly that the programmer notations in its source code prove thatFacebook is wrong.
Leader Press Release. Tellingly, Facebook knew this since ithad petitioned the trial court six months earlier for access to Leader's source code. Sopresumably, 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.
Appeal Brief, p.19.However, since discovery had closed and the trial evidence had already beensubmitted to the court, Leader had no procedural chance to submit its source code intoevidence in order to defeat this claim.
No testimony from the alleged recipients of the offers; no expert testimony analyzingthe alleged offers; the no-reliance clause inthe Leader non-disclosure agreementsdiscredits Facebook's on sale bar claim
The docket shows that Facebook did not conduct a single deposition with any of thealleged recipients of the early commercial offers, namely The Limited, BostonScientific, Wright Patterson Air Force Base.
Leader v. Facebook
docket.Leader's non-disclosure agreements contained a special provision called a "no-reliance"or "no legal effect" clause that specifically
preliminary discussions frombeing construed as offers. The Uniform Commercial Code ("UCC") recognizes suchagreements between parties.
Restatement (Second) of Contracts, §21 (agreementnot be be legally bound);
alsoLeader Renewed Motion for Judgment as a Matter ofLaw, p. 17, fn. 5;Leader JMOL Reply Brief, p. 7.
Facebook added convoluted juryinstructions about secrecy and non-disclosure agreements that the courtapproved
To confuse this legal matter even further, Facebook proposed and the trial courtapproved a number of changes to the model jury instructions for patent cases. Leaderobjected to all these departures from the norm. Facebook made convoluted changesdiscussing secrecy and non-disclosure agreements when
the model instructionsmake no mention of non-disclosure agreements and secrecy
Uniform JuryInstructions 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 secrecyand non-disclosure agreements, namely:1. "However, it is irrelevant whether or not the offer for sale was secret or non-secret;" and2. "An offer to sell can invalidate a patent even if the offer was secret, such asunder 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 clausespecifically negates the possibility of an offer for sale...
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