Follow along – This is “Guaranteed to blow your mind….”*
As we have discussed on this blog over the past month or so, Leader Technologies has succeeded in proving that Facebook infringed on their U.S. Patent No. 7,139,761. We are waiting to learn from The Federal District Court of Appeals if judges will overturn the “on sale bar” verdict from the original trial (D. Del. Case No: 08-cv-862).
We have also discussed how this case was not disclosed in FB’s S-1 filing announcing their IPO in February of this year.
Another item we revealed was that the attorneys listed on the S-1 were Fenwick & West LLP. The same attorneys that represented Leader in 2002 (the critical period surrounding the “on sale bar” claim.)
NOW I have discovered that Fenwick & West has filed 92 patents for FB since August 11th, 2006. None of which reference Leader’s patent as ‘prior art.’ (This was found utilizing a simple search mechanism available at USPTO.gov.)‘Prior art’ is defined by Wikipedia as “all information that has been made available to the public in any form before a given date that might be relevant to a patent’s claim of originality. If an invention is described in prior art, a patent on that invention is invalid.”
Here’s the kicker:
Fenwick & West LLP DID identify Leader’s patent as prior art in two patents which they filed for Marc Andreesen, the founder of Netscape. Specifically, patents numbered 7,603,352 (Filed August 26, 2005) and 7,756,945 (Filed August 2, 2005.)
Make up your mind Fenwick! Did Leader’s patent exist or not?!? If you recognized Leader’s patent in 2005 for Netscape, what stopped you from acknowledging it in 2006 in reference to FB??!!??
Oh that’s right, the M-O-N-E-Y.
Have you heard of “inequitable conduct?” If someone willfully withholds information from the US Patent Office that would otherwise invalidate that patent, they are in deep doo-doo. (Obviously doo-doo is not a patent law term, but hopefully, you get my point).
Now that FB has been found guilty on 11 of 11 claims of patent infringement, how could they not say the patent existed? Plus, they already did!!
It’s a big gamble.
They have a lot riding on the hope that the “on sale bar” verdict is upheld in appeal. I would like to think that the law is the only influence in this case. Not the M-O-N-E-Y.
That’s a risk-reward ratio even I wouldn’t take.
* Thank you Freddy Mercury of Queen.