Leader v. Facebook - Facebook's jury binder innuendo

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Origin of Facebook's
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.,
                                                                                                                    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

                                                                                                                    Click here for SUMMARY
                                                                                                                    "Bottom Line: American
                                                                                                                    Innovation is on the line"

                                                                                                                    1. Mark Zuckerberg used
                                                                                                                    Leader white paper to
                                                                                                                    build 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               2. Jury transforms
 technicality called on sale bar that "invalidates" the patent for this trial only if not overturned. Leader says
                                                                                                                    disbelief into evidence
 Facebook confused the jury with attorney "trial theater" instead of "clear and convincing" evidence.
                                                                                                                    3. No evidence? No
                                                                                                                    problem. Fabricate it.
 Click here for an HTML version of this post
                                                                                                                    4. Facebook’s' trial
 Friday, September 16, 2011                                                                                         conduct

                                                                                                                    5. Facebook's "court
 10. Facebook's jury binder innuendo                                                                                room theater"
 Opinion: One blogger's perspective                                                                                 6. Facebook's "I'm tired"
 Facebook's jury binder inferred relationships between
                                                                                                                    7. Missing Facebook
 items of evidence that confused the jury                                                                           Documents

 On the 4th day of the Leader Technologies, Inc. v. Facebook, Inc., 08-cv-862 (D.Del.                               8. Expert witness
 2008) trial, Facebook presented the jury with a 3-inch thick binder of evidence during                             practices "dark arts"
 their cross-examination of Leader inventor Michael McKibben.
                                                                                                                    9. Patent Office records
                                                                                                                    disprove Facebook
 On this first day of Mr. McKibben's testimony, Facebook’s attorney Michael Rhodes
 referred to only one document in the binder, namely a 2009 Interrogatory No. 9. See No                             10. Facebook's jury
 evidence. No problem. Fabricate it. This interrogatory answered a Facebook question                                binder innuendo
 about the features of the Leader2Leader brand as sold in 2009. According to
 knowledgeable sources, this interrogatory was placed in the back of the binder;
 requiring the jury to flip through two inches of other contents to get to the interrogatory.
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 Those two inches of content were year 2000 Leader engineering graphics designs that
 included a Leader2Leader logo. In other words, they were pictures of prospective
 computer screens the way a user would see them once they were created with real
 software code. These graphics are the software equivalent of an artist's rendering of
 one's "dream house." Just as a dream house picture is a far cry from the real house
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 (and many things can change before it is finished), so to with software interface design
 graphics. See Patent Office records disprove Facebook.
 McDay 1: "upon your oath" and "under                                                                                   Comments
 penalty of perjury"
 Reminiscent of Boston Legal, in perhaps Mr. Rhodes' most dramatic moment by all
 accounts, he reminded Mr. McKibben "upon your oath" that he should not lie about                                   Email me updates

                                                                                                                                       Generated using
accounts, he reminded Mr. McKibben "upon your oath" that he should not lie about
whether or not Leader2Leader was offered for sale in the 2002. Mr. McKibben said
Leader2Leader was a suite of products, and that the invention was not included in the                          Email address... Submit
suite until days before the Dec. 11, 2002 provisional patent filing. Indeed, Facebook
played fast and loose with the distinctions between the Leader2Leader suite and its
inclusion of the invention once it was ready. Tr. 10728:24.

McDay 2: Facebook's removal request
On the 5th day of trial, before Mr. McKibben returned to the stand for a second day of
Facebook questioning, Mr. Rhodes asked the court to REMOVE the year 2000 Leader
graphics designs from the jury binders because Facebook had made a mistake and
included way too much stuff. These documents were practically the entire contents of
the binder.

Such a mistake on such an important topic by a reputable law firm like Cooley
Godward LLP is remarkable. Nine pages of the trial transcript are devoted to this
request. Tr. 10740:7-10749:3.

Leader's objection of prejudice
Leader forcefully objected to the prejudice this would cause. Leader's attorney Phil
Rovner argued that it would look like Leader was trying to hide something since
Facebook had implied to the jury the day before that the entire contents had been
provided together—as if the year 2000 engineering graphics documents had
supplemented the 2009 Interrogatory No. 9.

The evident Facebook tactic was to infer by the juxtaposition of 2000 and 2009
documents, both containing the Leader2Leader logo, that the invention was actually
ready in 2000. And therefore, that Mr. McKibben was lying about when the invention
was ready.

To reinforce this inference, Facebook evidently wanted the jury to notice a physical
change in the jury binder by the dramatic disappearance of the 2000 graphics designs
from the binder. This would imply that Mr. McKibben did not want to perjor himself and
wanted the graphics designs removed. The jury would not remember whose binder it
was or who requested the removal.

  Fig. 1: The Leader 2000 engineering graphic designs disappeared from Facebook's jury binder on Day 2
   after Facebook consumed nine transcript-pages-worth of effort to perfect the removal. Leader objected
 strenuously to the prejudice caused by the jury thinking that Leader had requested the removal. The court
approved the removal during the jury's lunch break. The jury's disbelief of Mr. McKibben's testimony appears
  to have emanated from their confusion surrounding the prejudice created by this jury binder episode. Tr.

After 9 pages of transcript, the Court ordered the removal by the court clerks while the
jury was at lunch.

Jury confusion
Software product graphics designs in 2000 do not prove that an invention exists
underneath it. Only the software source code can prove that. However, Facebook's
evident tactic was to confuse the jury.

Bottom line, Interrogatory No. 9 spoke about a 2009 Leader2Leader brand that was on
the market and now includes the invention. The 2000 graphics designs were visions of
a future Leader2Leader product. Speaking colloquially, pretty pictures are not the same
as software source code. A lay jury can be excused for confusing nice graphics with
completed software code.

                                                                                                                                Generated using
Computer screen graphics are not source
Web software designers know that such graphics designs are generally created long
before they are reduced to practice. Such graphics are visions of the future product
that help guide developers toward a common goal.

Even though Facebook had access to Leader's source code, they produced none of it.
Their conduct shows that they did not have the proof, and resorted to jury binder tricks
instead. In other words, they relied upon the jury being confused by the mere use of
Leader2Leader graphics in 2000 as an inference that the source code was there too. A
person of skill in software would know that this is an invalid leap of logic. Facebook
proffered no expert testimony to give an opinion about these graphic designs.

Facebook played this jury confusion to a chilling effect.

Mr. Rhodes declares Leader's claim of
prejudice "absurd and shocking"
When Leader's attorney said that Leader would "suffer the prejudice" if the documents
are removed from the jury binder, Facebook's Rhodes exclaimed "I think that's an
absurd and shocking argument. The issue is their claim chart in there. I missed it. It’s
my error. I apologize." Tr. 10743:20-10744:4.

After consuming 9-pages worth of judicial resources on the subject of prejudice, Mr.
Rhodes suddenly finds it absurd and shocking that Leader would claim prejudice? Mr.
Rhodes was evidently signaling to the judge that unless Facebook got its way, this
issue would be appealed due to a ringer infringement chart also stuck in the binder.
This is a well-known "dark arts" trick.

Facebook became suddenly obsequious
Mr. Rhodes' eagerness to perfect the removal of the Leader graphics design
documents is apparent in this exchange with the court:

       THE COURT: How about I put the blame on you?
       MR. RHODES: Yes.
       THE COURT: So I say Mr. Rhodes realized this
       morning that he --
       MR. RHODES: Absolutely.
       THE COURT: -- included too much stuff.
       MR. RHODES: Absolutely, Your Honor.

       Tr. 10744:15-25.

Jury binder gutted on Day 2
Facebook got its way, their jury binder was gutted by the court clerks on Day 2 while
the jury was eating lunch.

Facebook never used the Leader graphics designs as evidence.

Innuendo perfected.


Posted by Patent Blogger 4 at 2:48 PM                                   0

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Other posts in this series of blogs about Leader v. Facebook

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
10. Facebook's jury binder innuendo


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                                                                         10. Facebook's jury binder innuendo
                                                                         SUMMARY: Leader v. Facebook trial analysis—
                                                                         2. Jury transforms disbelief into evidence

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Description: This blog examines Facebook's manipulation of the court rules regarding jury binder contents in Leader Technologies, Inc. v. Facebook, Inc., 08-cv-862 (D.Del. 2008). This episode had a chilling effect on the credibility of Leader inventor Michael McKibben regarding 35 USC 102(b) on sale bar.