The Federal Circuit is being asked to fix their misapprehension of the evidence
BY DONNA KLINE | June 7, 2012 | PITTSBURGH BUSINESS REPORT (PBR)
UPDATED Jun. 23, 2012 – Senate Judiciary Committee Contact List
June 7, 2012 – Leader Technologies filed a Petition for Rehearing of Leader Tech v. Facebook, Case No. 2011-1366 (3.5 MB) before the United States Court of Appeals for the Federal Circuit in Washington, D.C. Here’s Leader’s Press Release on the matter.
The definition of the word ‘is’
This case boils down to Facebook’s tampering with the definition of the word ‘is.’ During the original trial (Leader Technologies, Inc., v. Facebook, Inc., 08-cv-862-JJF-LPS (D.Del 2008)) Facebook managed to convince the jury that the use of the word “is” can also be used to describe something that occurred in the past. When clearly, the word “is” describes the present condition.
President Clinton used the definition of ‘is’ as a pivotal point in his Monica Lewinsky trial
This isn’t the first time that the definition of “is” has been pivotal in a legal matter. Remember President William J. Clinton? Didn’t he stand trial for perjury not too long ago? Here’s the Testimony Transcript of The Office of Independent Counsel on September 9, 1998, Tr. 510:5.
On page 509 of the transcript, the attorney references an affidavit from Monica Lewinsky that states “there is absolutely no sex of any kind in any manner, shape or form, with President Clinton.”
Our crafty former President, when asked if the statement was false calmly replied, “It depends on what the meaning of the word ‘is’ is.” He continues, “if ‘is’ means is and never has been, that is one thing. If it means there is none, that was a completely true statement.” (See page 510 beginning at line 5.) Correct, Mr. Clinton, “is” describes the current situation, not what may (or may not) have occurred in the past.
The precedents set in this case are of “exceptional importance”
Nothing short of the future of American innovation may be at risk here. Laymen (Goldman Sach: “Muppets”) often don’t appreciate the impact of court decisions on their daily lives. However, if mistakes are made in this case, innovation will take a serious blow from which it would take decades to recover. Our economy may not be able to withstand such an assault on the American inventor. In my opinion, hucksters are attempting to take over using run-of-the-mill theft and bribery—age-old tactics, this time in Harvard loafers and hoodies. Our veterans in Pittsburgh reminded us again just last week that “freedom is not free.”
Inventor McKibben did it by the book; but is that enough in our anti-patent courts?
This is a story of a true American entrepreneur and inventor, Michael McKibben, who had the idea for what we now call “social networking” more than a decade ago. He attacked the business problems by the book. He consulted some of the world’s foremost experts in intellectual property (incl. consultants to the Executive, Judiciary, Congress, Academia and industry on trade secrets, security and patenting), he invited those people onto his board, and he followed their advice. In 2002 he filed for patents since it was still early days for his idea. Bottom line, he did not do any of the things Facebook has accused him of with regard to alleged early selling.
However, instead of the courts standing behind the inventor in this case, they have stood behind the infringer Facebook. Instead of forcing Facebook to prove with hard evidence that McKibben allegedly offered the invention for sale, the court has criticized McKibben for not volunteering more evidence to prove that he did not try to sell it. The court is forcing Leader to prove that it did not do something rather than focusing on Facebook’s burden to prove their case. This is backward justice, I believe.
Facebook stole Leader’s technology
Remember, the issue here is not whether or not Facebook is using Leader’s property. They are. Facebook was found guilty on 11 of 11 counts of infringing Leader’s patent. That fact will not change. The issue in this petition is whether or not Facebook proved by “clear and convincing evidence” (or any evidence for that matter!) that Leader had tried to sell its invention more than one year before they filed the patent. Leader says that would have been impossible since it was not ready until days before the filing, and even then it was only on one developer’s computer for three more weeks after that.
Trying again; well-settled legal issues were not addressed by this court the first time around
The hard evidence proves Leader’s case, so why didn’t the court overturn the jury? Leader’s petition says they “misapprehended the evidence.” This is being very, very nice. I attended the hearing, Judge Kimberly Moore and I made eye contact and I saw nothing in her body language that indicated to me that she didn’t understand the legal issues. I walked out of there quite certain Leader would win. Then, the “opinion” came out affirming the lower court’s decision. Numerous patent experts called the write-up a “white wash,” followed by some unrepeatable expression of disgust at the complete absence of a real opinion about the serious matters of patent law involved in this case. Judge’s Moore’s opinions, a former patent law professor, were totally absent. This didn’t smell right even to this layperson. Then add that this opinion was posted within hours of the beginning of the Facebook IPO road show and I heard even William Shakespeare say from his grave, “Something stinketh.”
Here’s the future of patents if Facebook prevails:
- Attorneys, judges and juries can ask trick questions using present tense verbs, then blindside that witness with an application of that answer to some time in the past. Whimsy will rule.
- Mere references to brand names in sales documents can substituted for hard evidence, eliminating the need for an infringer to actually prove on sale bar. Whimsy will rule.
- Courts can dispense with well-settled precedent re. the need to apply contract law to assess alleged offers and can simply use personal opinion. Whimsy will rule.
- Nondisclosure agreements will no longer protect the secrecy and other contractual agreements of business discussions. Secrecy agreements will be rendered meaningless and trade secrets law unenforceable when it comes to the business of being an inventor.
On the other hand, if Leader prevails:
- The English language use of the present tense will continue to mean the present, and not the past; just as the Supreme Court has said many times.
- Infringers will be prevented from playing games with brand name references in selling documents and will be forced to actually prove the engineering contents of those products with hard evidence and not attorney-fabricated smoke and mirrors.
- Courts will be forced to follow well-settled contract law to assess alleged offers.
- Courts will be forced to assess the circumstances surrounding secrecy practices and not simply perform a chase for signed NDAs which are only one of many acceptable secrecy practices.
If Facebook prevails, patent trials will become a “dark arts” zoo.
Every champion of property rights should care about this case
For this reason, I believe that every champion of property rights in America should stand behind Michael McKibben and Leader Technologies. If Facebook prevails, jury trickery and court manipulation will be validated by the second highest court in the land. This cannot be permitted in a civilize country.
OPERATION “SPOTLIGHT” – Make your voices heard!
The three-judge Federal Circuit panel needs to hear from the public. We need to send a strong message that corruption will not be tolerated and that fairness, equity and right conduct are expected from our courts. Nothing about Facebook’s case makes any sense. They tricked a jury, and then a district court judge, and three federal circuit judges affirmed that trickery. This is unacceptable. The jury, the finders of fact, were manipulated and these judges need to step up. The job of an appeals court is to fix mistakes of lower courts, not simply pronounce blessings of misconduct. We shouldn’t be paying them just to go through the motions of justice. If Leader were to lose fair and square, so be it. But to date, in my opinion, nothing about this case is fair or square.
A number of regular readers to my blog have been preparing names and address for your letter writing campaign. That contact information will go up just as soon as this blog post goes live. Then, fire away. This public awareness campaign should not stop until justice done.
Leader’s press release contained new information that information has surfaced that Mark Zuckerberg not only had Leader’s white papers in 2003, but that he obtained an actual copy of Leader’s source code in in late 2003. If this is true, this opens the damages in the Leader v. Facebook patent infringement case to triple the amount. Also, it exposes Facebook to copyright and trade secrets violations, which if proved, could bring Facebook to its knees.
Leader asks people to come forward / reward offered
A reward is being offered to the first individuals who come forward with credible evidence about the Facebook formative years starting in late 2002 through 2004. If you have such information, you are invited to contact Leader anonymously through a trusted intermediary. Leader’s press release has more details on how to contact them anonymously.
Readers of this blog proved themselves – Justice will be served.
My readers did a good job getting to certain media personalities in the last few weeks. Let’s now re-double those efforts to send the message that the light of public opinion will shine brightly now on this Leader v. Facebook case until justice is served.
We will begin posting your OPERATION SPOTLIGHT campaign names and emails now.
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