VIEWS: 28 PAGES: 5 CATEGORY: Federal Court POSTED ON: 11/29/2011
This blog analyzes Leader's Reply Brief following Facebook's Response Brief in Leader Technologies, Inc. v. Facebook, Inc., 08-cv-862-JJF-LPS (D.Del. 2008). In a recondite rebuff of Facebook's legal argument, Leader lawyers take Facebook to the proverbial woodshed.
Share Report Abuse Next Blog» Create Blog Sign In Origin of Facebook's technology? Important new facts have emerged from Leader v. Facebook WBNS-10TV (CBS) Columbus, Ohio Aug. 29, 2011 – Leader v. Facebook Leader Technologies, Inc. v. Facebook, Inc., Inc., 08-cv-862 (D.Del. 2008) Scroll down below CBS-TV news WBNS-10TV (CBS) video to read posts investigative report by Paul Aker, Aug. 29, 2011 ««« TABLE OF POSTS 11/28/2011 - Leader's lawyers dismantle Facebook's "schizophrenic" response brief Click here for © WBNS The fight goes on. Click to read Leader's Federal Circuit Opening Brief. The trial resulted in a split SUMMARY "Bottom Line: verdict. Leader won on "literal infringement" of 11 of 11 claims and no prior art. Facebook won on a American Innovation is on technicality called on sale bar that "invalidates" the patent for this trial only if not overturned. Leader says the line" Facebook confused the jury with attorney "trial theater" instead of "clear and convincing" evidence. 1. Mark Zuckerberg used Leader white paper to Click here for an HTML version of this post build Facebook Monday, November 28, 2011 2. Jury transforms disbelief into evidence Leader's lawyers dismantle Facebook’s 3. No evidence? No "schizophrenic” response brief problem. Fabricate it. OPINION: One blogger's perspective 4. Facebook’s' trial conduct Oral arguments will now be scheduled in front of a 3- 5. Facebook's "court room theater" judge panel at the Federal Circuit Court of Appeals 6. Facebook's "I'm tired" In a recondite rebuff of Facebook's legal arguments, tactic Leader lawyers take Facebook to the proverbial 7. Missing Facebook Documents woodshed. The stage is now set for a showdown on legal matters that will affect American innovation and 8. Expert witness practices "dark arts" jurisprudence for many years, if not decades. If Leader prevails it will support the American inventor and 9. Patent Office records disprove Facebook entrepreneurial spirit. If Facebook prevails it will 10. Facebook's jury encourage big infringers to steal inventions and use binder innuendo revenue from the inventions to fend off the day of reckoning. Share/Print this blog November 28, 2011 — Leader Technologies today filed its reply brief (Gray Brief, click here) following Facebook's response brief (Red Brief, click here) to Leader's opening appeal brief (White Brief, click here) in Leader Technologies, Inc. v. Facebook, Inc., 08-CV-862-JJF-LPS (D.Del. 2008). 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: Subscribe to this blog Leader won on "literal infringement" of 11 of 11 patent claims and no published prior art. 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 Posts Circuit Court of Appeals in Washington D.C., Leader argues that Facebook had no Comments Generated using PDF-ace.com 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. Comments Facebook says their evidence was "substantial." Leader shows that Facebook's response is riddled with inconsistencies, misrepresentations, misdirection, weak or non-existent legal argument and pointless Email me updates invectives. Among the highlights are these: Email address... Submit 1. "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.) 2. "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"). 3. 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. 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 the truthful testimony. This was Facebook's evident tactic at this trial. 4. 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. 5. "Phantom NDA" Debunked: In a myopic interlude, Facebook spends 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)—this is after being shown that particular NDA at trial and hearing McKibben's testimony that Dr. Vincent Russo was the Wright-Patterson Air Force Base person at that meeting. A quick Google search confirms that Dr. Vincent J. Russo was indeed the top civilian who was leading Wright-Patterson at that time. See S. Hrg. 108-100, 108th Cong. III, p. 11 (2003) (testimony of Dr. Vincent J. Russo), U.S. Government Printing Office, TEXT 170K | PDF 5.5M; Facebook Red Br. 40, 44. Mr. McKibben testified, Trial Tr. 10805:24-10806:3, as follows: 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. Facebook’s new "phantom NDA" accusation on p. 40 of their Red Brief 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"). 6. 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 just the 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 it was present, disclosed and offered for sale. The problem here is that while Facebook produced code to disprove the presence of the invention in the provisional patent, it produced no source code to prove on sale bar. Both cannot be true. The absence of source code proof is fatal. See Expert witness practices "dark arts." 7. 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 Generated using PDF-ace.com trial case. This could prove fatal since hard evidence of the kind that only source code could provide was glaringly missing. 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's letter to Judge Stark containing Facebook attorney Mark Weinstein's statement. Trial Doc. No.283, Ex. 3, PDF p. 11 ("in order to analyze whether or not it practices the '761 patent...Facebook would require... the source code for Leader2Leader"). The judge was persuaded and gave Facebook access, but tellingly, none of it was produced trial. Facebook cannot argue that they provided "substantial" evidence to meet their "clear and convincing" burden of proof when they didn't produce the one piece of evidence that they themselves argued vehemently to the trial court they needed to make their element-by-element case—the Leader source code. This is likely fatal. 8. 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. 9. No expert testimony: Facebook makes brand new arguments about Leader’s patent claims that it did not argue to the jury, nor did it 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. 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. Given a pending damages, willfulness and 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 it has stolen intellectual property. PhD candidate, Christi Scott Bartman, recently wrote on this subject. Whatever the motivation for continuing to press convoluted arguments, Facebook's legal case appears to have no legs. American inventor-ship is on trial here. Will it back the innovation horses, or the leg-less horsemen? Time will tell. *** Posted by Patent Blogger 4 at 4:05 PM Recommend this on Google 0 comments: Post a Comment Generated using PDF-ace.com Comment as: Select profile... Post Comment Preview Home Older Post Subscribe to: Post Comments (Atom) Other posts in this series of blogs about Leader v. Facebook Leader's lawyers dismantle Facebook's "schizophrenic" response brief SUMMARY - Leader v. Facebook trial analysis--American Innovation is on the line 1. Mark Zuckerberg used Leader white paper to build Facebook 2. Jury transforms disbelief into evidence 3. No evidence? No problem. Fabricate it. 4. Facebook's trial conduct 5. Facebook's "court room theater" 6. Facebook's "I'm tired" tactic 7. Missing Facebook Documents 8. Expert witness practices "dark arts" 9. 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