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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                                                  «« POSTS (below video)

                                                                                                                    SUMMARY - Bottom Line
                                                                                                                    - American innovation on
                                                                                                                    the line

                                                                                                                    1. Mark Zuckerberg used
                                                                                                                    Leader white paper to
                                                                                                                    build Facebook
                               WBNS-10TV (CBS)                                                                      2. Jury transforms
                               investigative report by                                                              disbelief into evidence
                               Paul Aker, Aug. 29, 2011                                                             3. No evidence? No
                                                                                                                    problem. Fabricate it.

                                                                                                                    4. Facebook’s' trial
                                                                                                                    conduct

                                                                                                                    5. Facebook's "court
                                                                                                                    room theater"

 © WBNS The fight goes on. Click to read Leader's Federal Circuit Opening Brief. The trial resulted in a split      6. Facebook's "I'm tired"
 verdict. Leader won on "literal infringement" of 11 of 11 claims and no prior art. Facebook won on a
                                                                                                                    tactic
 technicality called on sale bar that "invalidates" the patent for this trial only if not overturned. Leader says
                                                                                                                    7. Missing Facebook
 Facebook confused the jury with attorney "trial theater" instead of "clear and convincing" evidence.
                                                                                                                    Documents

 Click here for an HTML version of this post                                                                        8. Expert witness
                                                                                                                    practices "dark arts"
 Wednesday, August 17, 2011
                                                                                                                    9. Patent Office records
 5. Facebook's "court room theater"                                                                                 disprove Facebook

 Opinion: One blogger's perspective.

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 The law requires hard evidence; not innuendo, ambiguous
 cartoons, trick questions, spliced video snippets and mere                                                              Share this on Facebook

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 Facebook's "clear and convincing" burden of proof in Leader Technologies, Inc. v.                                   Get more gadgets for your site
 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
                                                                                                                                            Generated using PDF-ace.com
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

                                                                                             Generated using PDF-ace.com
  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.

                                            ***




  Posted by Patent Blogger 4 at 3:12 AM                                      0




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Patent Blogger 4                                                        2011 (10)
View my complete profile                                                   September (2)
                                                                           August (8)
                                                                          1. Mark Zuckerberg used Leader white paper to buil...


                                                                                                                        Generated using PDF-ace.com
                            4. Facebook’s trial conduct
                            8. Expert witness practices "dark arts"
                            6. Facebook's "I'm tired" tactic
                            5. Facebook's "court room theater"
                            9. Patent Office records disprove Facebook
                            3. No evidence? No problem. Fabricate it.
                            7. Missing Facebook Documents




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                                                                         Generated using PDF-ace.com
llogism:
       (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

                                                                                                               Generated using PDF-ace.com
  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.

                                            ***




  Posted by Patent Blogger 4 at 3:12 AM                                      0




  0 comments:
  Post a Comment




  Comment as:      Select profile...

    Post Comment           Preview




  Newer Post                               Home                              Older Post


                            Subscribe to: Post Comments (Atom)




Followers



About Me                                                            Blog Archive

Patent Blogger 4                                                        2011 (9)
View my complete profile                                                   August (9)
                                                                          Mark Zuckerberg used Leader white paper to build F...
                                                                          Facebook’s trial conduct
                                                                          Expert witness practices "dark arts"
                                                                          Facebook's "I'm tired" tactic
                                                                          Facebook's "court room theater"
                                                                          Patent Office records disprove Facebook
                                                                          No evidence? No problem. Fabricate it.
                                                                          Missing Facebook Documents
                                                                          Mark Zuckerberg used Leader white paper to build F...




                                           Awesome Inc. template. Powered by Blogger.




                                                                                                                       Generated using PDF-ace.com

				
DOCUMENT INFO
Description: This blog discusses Facebook's use of inventor attack, innuendo, ambiguous cartoons and interrogatories, video snippets, and testimony pauses in lieu of "clear and convincing" proof of element-by-element evidence. in its arguments for on sale bar and public disclosure in Leader Technologies, Inc. v. Facebook, Inc., 08-cv-862-JJF/LPS (D.Del. 2008).