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
video to read posts
WBNS-10TV (CBS)
investigative report by
Paul Aker, Aug. 29, 2011 ««« TABLE OF POSTS
Facebook's prized
"evidence" was a trick
Facebook's "clear and
convincing" burden of
proof in Leader v.
Facebook
© WBNS The fight goes on. Click to read Leader's Federal Circuit Opening Brief. The trial resulted in a split
verdict. Leader won on "literal infringement" of 11 of 11 claims and no prior art. Facebook won on a 11/28/2011 - Leader's
technicality called on sale bar that "invalidates" the patent for this trial only if not overturned. Leader says
lawyers dismantle
Facebook's
Facebook confused the jury with attorney "trial theater" instead of "clear and convincing" evidence.
"schizophrenic" response
brief
Click here for an HTML version of this post Click here for
SUMMARY "Bottom Line:
Sunday, January 15, 2012 American Innovation is on
the line"
Facebook's prized "evidence" was a trick 1. Mark Zuckerberg used
Leader white paper to
OPINION: One blogger's perspective
build Facebook
Facebook concealed over 60% of Interrogatory No. 2. Jury transforms
disbelief into evidence
9; breached the completeness doctrine (Fed.
R.Evid. 106) 3. No evidence? No
problem. Fabricate it.
January 15, 2012 – According to the trial court, Facebook’s lone trial victory for public 4. Facebook’s' trial
disclosure/on sale bar in the Leader v. Facebook patent infringement trial was founded conduct
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 5. Facebook's "court
room theater"
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. 6. Facebook's "I'm tired"
tactic
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 7. Missing Facebook
omitted pages, Facebook redacted 60% of the content. Documents
8. Expert witness
Facebook's public disclosure/on sale bar argument turned on Interrogatory No. 9 as an
practices "dark arts"
alleged "inventor's admission" that the Leader2Leader technology in late 2002
contained the same technology as discussed in the interrogatory. Opinion 45-55. An 9. Patent Office records
"interrogatory" is a pre-trial question put to a person who answers under oath. disprove Facebook
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. 10. Facebook's jury
binder innuendo
Share/Print this blog
Animation (click)
Generated using PDF-ace.com
Subscribe to this blog
Animation (click) Posts
Comments
Email me updates
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 Email address... Submit
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. 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
Generated using PDF-ace.com
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.
Generated using PDF-ace.com
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:
Generated using PDF-ace.com
"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
Generated using PDF-ace.com
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.
***
Posted by Patent Blogger 4 at 6:46 PM
Recommend this on Google
0 comments:
Post a Comment
Enter your comment...
Comment as: Select profile...
Publish Preview
Home Older Post
Subscribe to: Post Comments (Atom)
Generated using PDF-ace.com
Other posts in this series of blogs about Leader v. Facebook
Facebook's prized "evidence" was a trick
Facebook's "clear and convincing" burden of proof in 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. Patent Office records disprove Facebook
Followers
About Me Blog Archive
Patent Blogger 4 2012 (1)
View my complete profile January (1)
Facebook's prized "evidence" was a trick
2011 (13)
Awesome Inc. template. Powered by Blogger.
Generated using PDF-ace.com