Important new facts have emerged from
Leader v. Facebook
Origin of Facebook'sOrigin of Facebook'stechnology?technology?
© WBNSThe fight goes on.Click to read Leader's Federal Circuit Opening Brief. The trial resulted in a
splitverdict
. Leader won on "literal infringement" of 11 of 11 claims and no prior art. Facebook won on atechnicality called on sale bar that "invalidates" the patent for this trial only if not overturned. Leader saysFacebook confused the jury with attorney "trial theater" instead of "clear and convincing" evidence.
WBNS-10TV (CBS) Columbus, Ohio Aug. 29, 2011 –
Leader v. Facebook
Opinion: One blogger's perspective
Leader won all verdicts where the playingfield was even
Facebook slipped in changes to the "on sale bar" juryinstructions 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 onthe jury verdict which said that Leader had offered the invention in a commercial offerfor sale more than twelve months before the priority date. USC 102(b). However, theplaying field was not even, and the facts do not support this claim.
Facebook added the early commercialactivity claim just three months beforetrial, after the close of all discovery; thenew judge had only been on the job a fewweeks
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below CBS-TV newsvideo to read posts
Leader Technologies,Leader Technologies,Inc. v. Facebook, Inc.Inc. v. Facebook, Inc.
,,08-cv-862 (D.Del. 2008)08-cv-862 (D.Del. 2008)
Click here for SUMMARY"Bottom Line: AmericanInnovation is on the line"1. Mark Zuckerberg usedLeader white paper tobuild Facebook2. Jury transformsdisbelief into evidence3. No evidence? Noproblem. Fabricate it.4. Facebook’s' trialconduct5. Facebook's "courtroom theater"6. Facebook's "I'm tired"tactic7. Missing FacebookDocuments8. Expert witnesspractices "dark arts"9. Patent Office recordsdisprove Facebook
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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.
See
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.
See
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.
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 frombeing construed as offers. The Uniform Commercial Code ("UCC") recognizes suchagreements between parties.
See
Restatement (Second) of Contracts, §21 (agreementnot be be legally bound);
See
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
.
See
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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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 aneven fewer know about the the Restatement (Second) Contracts and its "no legaleffect" provision. This trial appears to have suffered dramatically from this ignorance.
See
MBIA Ins. Corp. v. Royal Indem. Co
. at 210 (Unambiguous written agreementsshould be enforced according to their terms, especially between sophisticated parties).A reasonable person can see that Facebook knew the no-reliance clause destroyedtheir on sale bar argument, so they set out to neutralize its legal effect with more "darkarts" to confuse the jury, and the law on the subject.The bottom legal line is simple: The no-reliance clause in Leader's non-disclosureagreements 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 expertDr. Saul Greenberg offered erroneous science regarding Leader's provisional patentdisclosure. In order for Facebook to put its early commercial activity claim in play, itfirst 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 provisionalpatent application was somehow deficient. Dr. Greenberg claimed that the provisionaldisclosure did not anywhere disclose the presence of a "tracking component." The
prima facie
evidence disproves Dr. Greenberg's testimony, but worse, he used badscience to prove his point.Dr. Greenberg's methods violated the principle of bivalence by asserting that twodiametrically opposed truths were both true. This bad science formed the basis of histestimony. Therefore, as a matter of law, his testimony must be dismissed. Histestimony had a chilling effect on the jury's assessment of the facts, and was the onlytestimony at trial that the provisional patent did not disclose the tracking component.Leader's expert witness Dr. James Herbsleb showed multiple instances of the trackingcomponent.For a fuller analysis of Dr. Greenberg's expert testimony, go to another entry in thisblog 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 inan "inventor's admission" that the Leader2Leader brand has always contained theinvention. He did not, as the record shows.
RubeGoldbergwould beproud
Rube Goldberg's cartoonsare famous for depictingconvoluted gadgets.
See
Rube Golberg gadgets.Facebook's Rube Goldberggadget for
Leader v.Facebook
included thefollowing components. Wehave written on theseelements 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 roomtheater;"; (4)
Fabrication
,No evidence? No problem. Fabricate it.; (5)
Innuendo
,Facebook's "I'm tired" tactic;Patent Office records disprove Facebook; (6)
Unreliablescience
,Expert witness practices "dark arts;"(7)
Confuse the law
,Patent Officerecords disprove Facebook,Facebook's "I'm tired" tactic,No evidence? No problem.
Fabricate it., andFacebook's trial conduct.
Fig. 1: Rube Goldberg gadget to sharpen a pencil.Linked from:www.rubegoldberg.comClick hereto enlarge.Generated using PDF-ace.com
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Leader v. Facebook - Facebook's trial conduct
This blog analyzes the professional conduct of Facebook's attorneys in Leader Technologies, Inc. v. Facebook, Inc., 08-cv-862-JJF/LPS (D. Del. 2008), now on appeal in the Federal Circuit.
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