Will the U.S. Supreme Court support schemers or real American inventors?

Facebook’s case dangles on a doctored interrogatory

---

Eighteen (18) areas of question shout for attention

---

By Contributing Writers | Americans For Innovation | Updated Dec. 28, 2012 | PDF Ver.

< Go back to "A Cocksure Facebook?" AMERICANS FOR INNOVATION, Dec. 11, 2012.

AFI Editorial

(Dec. 27, 2012)—Leader Technologies, Inc., v. Facebook Inc., No. 12-617 (U.S. Nov. 16, 2012) comes before the U.S. Supreme Court in conference on Jan. 4, 2013. In that conference the justices create a “short list” of cases they will consider hearing. If a petition does not make this short list, that appeal is denied by default without any further consideration of the merits.

Leader v. Facebook merits consideration; dark clouds hover over this case

It seems inconceivable that Leader v. Facebook will not be heard since Facebook went public in the largest tech IPO in history during this case. Numerous legal and ethical dark clouds hover over this case as a result of the IPO, including presiding judges who failed to disclose their ownership of Facebook stock.

The dark clouds include:

1. abuse of Leader’s Fifth and 14th Amendment Constitutional rights to due process by both the District Court and the Federal Circuit;
2. ignoring long-held Supreme Court precedent (e.g., Pfaff, Group One, Carr, etc.);
3. ignoring the The Dictionary Act on use of the present tense definition of “is;”;
4. fabrication of new evidence and argument favorable to Facebook in the secrecy of judges’ chambers and without a hearing;
5. Federal Circuit judges holding stock in Facebook;
6. Federal Circuit judges refusing to disclose their conflicts of interest;
7. Federal Circuit judges ignoring new evidence showing Mark Zuckerberg withheld 28 hard drives and Harvard emails from Leader during discovery;
8. jury permitted to ignore instructions to perform Pfaff element-by-element test;
9. district court judge ignoring his own instructions to Leader to answer Interrogatory No. 9 in the present tense (2009) (on-sale bar was not even a claim then, so there was no reason to answer about 2002);
10. district court judge allowed the on-sale bar claim after discovery had closed and blocked Leader from preparing defenses for the new on-sale bar claim;
11. district court judge allowing Facebook to introduce attorney-doctored evidence (Interrogatory No. 9) that confused the jury;
12. district court judge ignoring the jury's statement that they had no hard evidence of on-sale bar;
13. refusal by the Federal Circuit Clerk to docket Amicus Curiae (Friend of the Court) briefs and motions;
14. easily provable false statements in the Federal Circuit opinions;
15. cozy relationships among Facebook attorneys and The Federal Circuit Bar Association (FCBA);
16. attempt by the FCBA to absolve the judges of conflicts, including Facebook stock holdings;
17. DC Bar refusing to conduct disciplinary investigations despite knowledge of misconduct; and
18. numerous appearances of impropriety by judges and judicial employees.

Perhaps if the questionable conduct were limited to just one or two items, then the Supreme Court could be excused for giving this case a pass. However, eighteen areas of questionable conduct shout for the Court’s attention.

Will the Supreme Court permit a single attorney-doctored interrogatory to pass for "clear and convincing evidence"

Legally, the courts narrowed Facebook's on-sale bar case down to a single question: Can a single interrogatory about the composition of the Leader2Leader® branded product in 2009 apply also to the Leader2Leader® product in 2002? In a pre-trial deposition, Facebook asked Leader in 2009 which of its products practice (present tense) the invention. Leader answered Leader2Leader®. Facebook never asked about Leader2Leader® in 2002.

When asked at trial if Leader2Leader® in 2002 practiced (past tense) the invention, Leader said it did not. Facebook's attorneys mixed this present-past tense question into a confusing word soup that tricked the jury into believing that Leader's inventor Michael McKibben had changed his story. This innuendo is Facebook's entire case.

The purpose of Pfaff was to stop "dark arts" innuendo and evaluate hard evidence - no such evidence was provided

Leader's attorneys have argued repeatedly that this kind of attorney "dark arts" is exactly why the U.S. Supreme Court directed lower courts to do an "element-by-element" test to find hard evidence. In other words, its not good enough to simply say that something practices the invention, one must prove it by laying out each nut and bolt. In software, these nuts and bolts are the computer "source code."

Tellingly, even though Facebook had access to Leader's source code, they did not produce it (because it proved their innuendo was false). This element-by-element directive was established in 1998 by the U.S. Supreme Court's Pfaff decision. The Pffaf test was never performed by the district court or by the Federal Circuit in this case—even though the district court instructed the jury to do so in the jury instructions. See Jury Instruction 4.7.

Fig. 1 – Facebook’s claims timeline. See Leader Combined Petition, Leader Tech v. Facebook, Case No. 2011-1366 (Fed. Cir.), Jun. 7, 2012. The courts must test the evidence against precedents including Pfaff v. Wells Electronics, Inc., 525 US 55 (Supreme Court 1998) and Group One, Ltd. v. Hallmark Cards, Inc., 254 F. 3d 1041 (Federal Circuit 2001). See also "The Leader v. Facebook judicial scandal widens." Donna Kline Now! Oct. 22, 2012.

The failure of the Federal Circuit to apply Pfaff is the first time in 19 on-sale bar cases in ten years when they did not apply it. Neither did they apply their own Group One test of the components of the alleged offers, either of which would have proven Facebook's allegations false. In other words, Leader v. Facebook is a Pfaff outlier.

Federal Circuit fabricated new arguments for Facebook  (the proven infringer) to avoid ruling in favor of Leader 

When the Federal Circuit later ruled that the innuendo surrounding Mr. McKibben's testimony was improper, only one piece of evidence remained: the doctored Interrogatory No. 9. Normally, one item of uncorroborated evidence cannot meet the clear and convincing standard. However, to avoid ruling in Leader's favor, the Federal Circuit judges concocted new arguments and evidence for Facebook in secret and then ruled in favor of their new evidence. Such actions by a court are an egregious violation of Leader's Fifth and 14th Amendment right to due process (to challenge the new evidence—evidence not even Facebook used).

This judicial conduct begs the question: "Why are the federal courts coddling Facebook's untenable legal arguments?" Incompetent? Bribed? Coerced? Otherwise Influenced?

To be crystal clear, below is the Interrogatory No. 9 evidence to which this issue of law refers. Note that 60% of this interrogatory was blanked out by Facebook’s attorneys Heidi Keefe, Michael Rhodes, Mark Weinstein and Jeffrey Norberg of Cooley Godward LLP and Theodore Ullyot and Samuel O’Rourke from Facebook (Ms. Keefe was Mr. O'Rourke's former boss at White & Case LLP) before it was shown to the jury. Public records reveal that Mr. Ullyot made out like a bandit in the Facebook IPO. See full analysis of Facebook attorney misconduct at "Origins of Facebook's Technology?"

Leader’s attorneys objected to this heavily-doctored version and asked that the jury be shown the entire interrogatory. The District Court Judge Leonard P. Stark refused to allow the entire interrogatory to be shown. The entire interrogatory included many objections which the jury never saw. See How Facebook Tricked The Jury and Facebook’s Jury Binder Innuendo.

Can the Supreme Court permit a single doctored interrogatory (below) to meet the "clear and convincing evidence" burden and invalidate a U.S. Patent?

Leader Responses to Interrogatory No. 9, Doc. Nos. 627-23,24 DTX-0963,0969, Apr. 17, 2009 and Oct. 28, 2009...
Fig. 2 - Leader Responses to Interrogatory No. 9, Doc. Nos. 627-23,24 DTX-0963,0969, Apr. 17, 2009 and Oct. 28, 2009, Filed Aug. 25, 2010, Leader Technologies, Inc. v. Facebook, Inc., 08-cv-862-JJF-LPS (D.Del. 2008). Note that when these questions were asked, Facebook was asserting a "false marking" that the invention never existed and the products Leader was selling in 2009 were falsely marked with a patent number. Therefore, there would have been no need to ask a question about the Leader2Leader® product in 2002. Re-purposing of this question to apply to 2002 is classical attorney "dark arts" (deception of a lay jury with attorney tricks).

Will Lady Justice prevail?

If the Supreme Court does not agree to hear Leader v. Facebook, this case could go down as the biggest legal fiasco in the history of American patent jurisprudence. The abuse of constitutional rights at the hands of scheming Facebook attorneys and cooperative federal judges strikes at the core of American democracy and property rights.

Who deserves greater discipline, the judges or Facebook's lawyers?

Is it the chicken or the egg? Should the federal judges in Leader v. Facebook be disciplined for allowing the attorney chicanery in this case, or should the lawyers be disciplined for abusing the legal system? The Rules of Professional Conduct and the Code of Conduct for United States Judges both say these lawyers deserve severe discipline, and where they have committed crimes, they deserve imprisonment. Our American legal system relies upon the good faith of its licensed practitioners. They all pledged a solemn oath not to exploit the weaknesses of our system when they received their licenses to practice law.

Property or impropriety?

This case doesn't have much middle ground. Either it will affirm the property rights of U.S. patent holders, and affirm current patent law, or it will open a floodgate of judicial chicanery. Judges will either be told to follow existing precedent and "avoid the appearance of impropriety," or they will be given a blank check to hold stock in litigants, curry favor with unscrupulous law firms, and interpret existing law capriciously.

If American inventors like Leader Technologies are not protected, the news of this breach of trust will send seismic shock waves within the inventor community. Inventors will get the clear message that they should not bother sharing their ideas with the world, since those intellectual properties will just evaporate in the hands of well-funded thieves and corrupt judges.

Common Sense or Corruption?

Corruption is an insidious disease. It always starts with small tremors—a favor here, a "white lie" there. But those tremors eventually become full-blown shock waves.

Our governmental "checks and balances" are supposed to expose corruption. The Supreme Court's posture toward Leader v. Facebook will be a barometer of the moral condition of our legal system. Facebook's evidence has all been debunked. So, the only reason the Supreme Court would not hear this case is if they, too, are compromised.

Mexican government there, federal judges here; all in a day's work?

When one sees Wal-Mart's directors, including Facebook’s Director James W. Breyer, being accused of massive bribery in Mexico, is it a stretch to believe that Mr. Breyer would do similar things with a few federal judges in Leader v. Facebook?

Facebook’s other shadow director, former bail out director Lawrence Summers, knows all too well the weaknesses of American institutions. Mr. Summers appears quite willing to apply that knowledge to his Goldman Sachs-led Facebook IPO and to Leader v. Facebook?

See "The Bribery Aisle: How Wal-Mart Got Its Way in Mexico." The New York Times, Dec. 17, 2012; See also "Cover-up In Process At The Federal Circuit?" Donna Kline Now! Sep. 17, 2012; "James W. Breyer's tangled web of insider trading." Donna Kline Now! Apr. 27, 2012; "Are Facebook insiders mocking the Business Judgment Rule? Who really controls Facebook? Shhhh." Donna Kline Now! May 3, 2012.

Fenwick & ("Nary a peep") West LLP

Why hasn't Facebook settled with Leader? They've settled with everyone else and their dogs. The problem appears to be Leader's former law firm, Fenwick & West LLP. Fenwick appears to have their knickers in a real ethical twist. Fenwick presided over Facebook's IPO and handles Facebook patent filings. Although they were clearly aware of Leader's technology, they did not disclose it in Facebook's patents, nor did they disclose Leader v. Facebook to prospective Facebook investors. Nary a peep.

Fenwick appears to be using some sort of convoluted logic to reason that if they can somehow obliterate Leader's patent as if it never existed, then perhaps they can avoid "inequitable conduct" at the Patent Office. This seems unlikely since they were required to disclose Leader's technology anyway. Their failure to do so puts Facebook's entire 700+ patent portfolio at risk and gives them a pretty strong motivation to cheat.

Will the U.S. Supreme Court stand up to this growing institutional lawlessness?

We'll know soon.

* * *

Click here to post a Comment by Email
(Anonymous Comments Welcomed)