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Tuesday, December 11, 2012


Facebook waived their right to respond to Leader Technologies’ U.S. Supreme Court petition

AFI Insights | Contributing Writers | AMERICANS FOR INNOVATION | Dec 11, 2012 | UPDATED Dec. 30, 2012

Seal of the United States Supreme Court New Update! (Dec. 30, 2012)—DC Bar letter essentially admits that the Washington DC legal environment is a system of patronage. DC Bar refuses to investigate any Federal Circuit attorneys involved in Leader v. Facebook. They claim that none of the Federal Circuit attorneys and judges are registered to practice law in Washington D.C.

"DC Bar refuses to investigate attorneys in Leader v. Facebook - Unwillingness of DC attorneys to self-police may explain why Washington is broken."

The United States of American -or- The Attorney Patronage States of America?
The United States of America -or- The Attorney Patronage States of America?

AFI Reader Comment from "EUREKA MOMENT on 01/02/2013:"
"AFI, you may have figured out what's wrong with Washington in addition to the Leader v. Facebook case!
Imagine a company run by 50% of any one profession and common sense says you'll see a BROKEN organization.
Think about it.
Imagine a school run by 50% plumbers.
Imagine a builder run by 50% accountants.
Imagine a non-profit run by 50% hedge fund brokers.
Imagine a water treatment plant run by 50% chemists.
Imagine a farm run by 50% nurses.
It doesn't work.
Of course these organizations would be broken and couldn't get anything done... just like Washington DC. Too many attorneys! Eureka! We aren't crazy."

18 areas of question shout for U.S. Supreme Court attention in Leader v. Facebook

UPDATE (Dec. 27, 2012)AFI Editorial: "Will the U.S. Supreme Court support schemers or real American inventors? Facebook's case dangles on a doctored interrogatory" 18 areas of question shout for attention (also included below).

UPDATE (Dec. 23, 2012)—New AFI essay proposes two public policies that could dramatically change the tenor of America's public discourse . . . quickly (and help fix the judicial corruption exposed in Leader v. Facebook). This is a MUST READ! "Leader v. Facebook triggers grassroots public policy proposal." Click here.


(Dec. 11, 2012)— On Nov. 16, 2012 Leader Technologies filed their petition with the U.S. Supreme Court in Leader Technologies, Inc., v. Facebook Inc., No. 12-617 (U.S. Nov. 16, 2012).

Within days, Facebook notified the Court that they were voluntarily waiving their right to respond to Leader’s challenge. This set the stage for a judges’ conference now set for Jan. 4, 2012. See Supreme Court Docket No. 12-617.

Facebook's failure to respond demonstrates a rarely seen cockiness. When tens of billions of dollars of shareholder value are at stake, such petitions are generally taken seriously.

Judicial watchers say this lack of response by Facebook has several possible meanings:

(1) Facebook is acknowledging that they do not have a good legal argument, and are simply playing the odds, since only a small percentage of petitions are heard;

(2) Facebook has already influenced the U.S. Supreme Court justices and their clerks who are currently writing their recommendations.

If Facebook is playing the statistical odds, then that is their prerogative, however reckless that might be. Did they disclose this risk to their public shareholders? On the other hand, if Facebook has continued their backroom judicial chicanery, then justice in America may be in worse shape than we suspect. The levels of appeal in our judicial system are specifically designed to root out such cronyism.

Chief Judge Rehnquist: Petition-Pooling Cronyism
Thomas G. Hungar, Gibson Dunn LLP
Thomas G. Hungar, Gibson Dunn LLP
Photo Source: Gibson Dunn

It is public knowledge that Facebook’s Leader v. Facebook appellate attorney, Thomas Hungar of Gibson Dunn LLP, is well known to the Supreme Court justices and clerks. See former Bloomberg reporter Donna Kline's investigation into Hungar's cozy associations within the Washington D.C. appeals court machinery. The bias problem motivated former Chief Judge William Rehnquist to oppose the current process of pooling the petitions. He said that it created a "clerk activism" and injected bias against one of the parties depending upon the clerk's subjective views (or undue influence?) irrespective of the the objective matters of law.

To be clear, “clerk activism” is a form of corruption whereby the clerk skews a recommendation to a particular point of view so that otherwise busy,  unsuspecting judges will accept the clerk’s recommendation as a fair and right assessment of the legal issues without digging into the matter themselves. Such corruption insults the democratic foundations of America regarding fair and unbiased treatment before the law.

Every concerned American should be watching Facebook's Thomas G. Hungar and his cronies closely for signs of U.S. Supreme Court "clerk activism" in Leader v. Facebook (since we have already witnessed such influence over the Federal Circuit Clerk of Court Jan Horbaly).

12 Steps to U.S. Supreme Court
“Clerk Activism” (Corruption)
  1. Court receives X number of petitions
  2. The 9th justice distributes X/8 to each of the other eight justices
  3. One clerk for each justice reads x/8 petitions
  4. The outside influencer learns which clerk has his case via his "insider" contacts on the Court (e.g., clerk, secretary, staffer, justice, rumor mill, friend, mole, casual conversation, janitor, IT support person, etc.)
  5. The outside influencer uses insider relationships to “encourage” the clerk to write a recommendation favorable to his client; offering one or more of an array of favors, bribes, promises, quid pro quos, IOUs, paybacks, future employment, foreign bank accounts, family and friend favors, marker, connections, coercion, blackmail, etc.
  6. Clerk writes recommendation favorable to the outside influencer’s client
  7. Recommendations circulated to the justices
  8. Most justices accept the recommendation of the clerk without reading the petition
  9. Chief Justice develops his short list based mostly on the recommendations
  10. Other justices add their suggestions to the short list based on each clerk's recommendations
  11. Short list decided on Jan. 4, 2013 (the outside influencer's opponent's petition is not on the list)
  12. Justice denied; democracy insulted
Leader’s “Petition for Writ of Certiorari” was filed by Paul J. Andre of Kramer, Levin, Naftalis & Fankel LLP. Mr. Andre is Managing Partner of Kramer’s Silicon Valley office in Menlo Park, CA. It is well known that the highly-respected Mr. Andre refuses to play these backroom parlor games.The petition zeroes in on two constitutional questions:

(1) Whether the Federal Circuit violated Leader’s Fifth and 14th Amendment right to due process when it fabricated new evidence and arguments “in the secrecy of judges’ chambers.” This new evidence and argument were necessary to prevent Facebook from losing their case since the court had invalidated Facebook’s other evidence.

(2) Whether the Federal Circuit can disregard Supreme Court precedent on verb tense. The lower court did so in its interpretation of a crucial question to the inventor in 2009 (ruling that the present tense verb “is” could be applied to seven years in the past), and whether 14-year old Supreme Court rules for interpreting on-sale bar accusations could be simply waived by the Federal Circuit.

Leader has issued two press releases:
Facebook did not return phone calls prior to press time.

Leader’s CEO and lead inventor, Michael McKibben, said, “We are receiving broad support across the political spectrum. The judicial cronyism is apparent. We were shocked to discover that our judges held Facebook stock and did not disclose such apparent conflicts of interest. We hope the U.S. Supreme Court will put a brake on it and make a strong statement for due process and inventor’s property rights.”

President Obama signing the America Invents Act
President Obama signing the America Invents Act
McKibben continued, “The fact that Facebook didn’t bother filing a response tells us that they know they have no case, and have been relying on undue influence all along. This is a perfect opportunity for the new administration to support true inventors and their investors and strike a blow to infringement, counterfeiting and judicial misconduct—activities that are so destructive to our economy. Our investors deserve their payday for the risks they took in backing the invention of what is currently called social networking—a technology now enjoyed by over a billion people. As American historian Hy Berman stated, future innovation is jeopardized if intellectual property theft by the well-connected is not stopped.”

McKibben concluded, “Facebook’s day of reckoning must come. Justice demands it.”

* * *

Will the U.S. Supreme Court support schemers or real American inventors? Facebook's case dangles on a docto...


  1. A special thank you to Donna Kline at for providing a hot link from her site to us earlier today! Donna says she'll be concentrating on other subjects as well as Leader v. Facebook. We are going to stay focused on this patent suit until justice is served. We'll have to wait and see what the U.S. Supreme Court does. Word on the street is that Facebook's people want Leader Technologies to lay down and play dead. However, word also has it that Leader's shareholders are "mad as hell." What is that saying "Hell has no fury...?"

  2. Comment by: steve n amy

    We have already tweeted the new site and emailed just about every congress person we could think of, as well as patent...aaagh!... lawyers (excuse me).
    Thank you for creating yet another place to voice our displeasure over this insane legal fight.

  3. Comment by: lisa

    Sounds like those "trusted souls" who the Supreme Court justices count on for the "straight skinny" from the hinterlands need to start educating them on what may be happening among their clerks. That said, Chief Justice Rehnquist's dislike of the pooling procedure probably means that the justices have developed ways to double-check the integrity of their clerks. Hopefully American justice is in good hands. We'll see.

  4. Comment by: Bill C

    American justice is the best money can buy. Don't believe me? Just look at the HSNB settlement for admitted money-laundering yesterday. $1.9B of shareholder's money and all the executive get off scot free. What is wrong with our morals? We save a bank of wrongdoers because it might upset things?!! It SHOULD upset things and the SHOULD be out of business. I for one will be more than willing to put up with the "inconvenience" of this kind of house cleaning.

    Hopefully the Supreme Court won't use such bankrupt moral logic in Leader v. Facebook. If Facebook is wrong, then they need to confess their crimes and pay up, or be put out of business. The "too big to fail" logic is too self-serving for my taste.

  5. The bottom line is,this case is black or white. Any laymen can see the writing on the wall.The SCOTUS can SEE logically, intellectually, casually, non casually, funny-like, CARTOONS, hard core facts ect..ect....ect..what has transpired over the last 9 years. It doesn't take a rocket scientist to figure this out people! All this has been is payoffs..and buddy systems.If the Supreme Ct doesn't do their duty that we rightly pay them to do.. we are all doomed. It will be official..The Banana Republic in our face like pie...Lets all brace ourselves. One question to any lawyer, judge..or all the above out there..How or on what basis would or could the Supreme ct. ever justify ruling not in behalf of Leader Technologies. They are the soul owner of patent 761 that is being used and abused daily and illegally!Someone tell me ?? Please...I want to know.

  6. Comment by: Surfer Dude

    Bill C's comment reminds me of the Parable of the Wise and Foolish Men. The Foolish Man built his house on shifting sands. When the wind and waves came, his house was washed away. The Wise Man built his house on solid rock, so that when the winds and rain came, the house stood firm.

    So it is with this corrupt "to big to fail" moral logic--it is all about Foolish Men and Woman building their houses on sand. God help us if these immoral people don't get thrown out on the ears, and soon.

  7. Comment by: The Logician

    HYPOTHESIS: Corrupt judges allow corrupt regulators, lawyers, and bankers to get away with corrupt activity under the guise of "not upsetting the status quo," this means that the "status quo" has been corrupted by these peoples' activites. Therefore, as long as we citizens allow these people to rule over this corruption, then logic says this corruption will only continue.

    History tells us that societal corruption will eventually collapse that society. One cannot build a good house on a bad foundation. This is the inevitable result of this behavior.

    With judges, our option is impeachment. If they are going to give corrupt lawyers and their clients free reign in their courts, then they are not doing the job we pay them to do.

  8. Comment by: Tom Smythe

    These judges are either asleep at the wheel, or they are allowing their clerks to work on the Facebook payroll. There is just no way Facebook met the "clear and convincing evidence" burden of proof. All they ever had was a 2009 present tense interrogatory that F-O-U-R FEDERAL JUDGES have allowed to be applied to 2002. P--A--T--H--E--T--I--C. I have always tried to give judges respect, but now they have to earn it back as far as I am concerned. I'll bet these clerks were promised cush jobs in the private sector. I am ready to see some heads roll. E-N-O-U-G-H. We layman have got to step in and start policing this out of control judiciary.

  9. Comment by: BG-007

    Dr. A cited a case about a clerk's "financial incentives to benefit a future employer."

    Byrne v. Nezhat, 261 F. 3d 1075 (11th Circuit 2001) at 1102 ("a law clerk has a financial incentive to benefit a future employer").

  10. Comment by: Judicial Corruption

    Brilliant legal reform proposal! I am so in the weeds on this subject that such a brilliantly simple solution never occurred to me! It could work because: (a) it is only fair that lawyers be held accountable like the rest of us, and (b) impeachment should not be the only avenue to correct injustices inflicted by corrupt judges. The thought alone that they'd face pragmatic laymen for misconduct will be self-checking, which is exactly what good deterrence is all about.

  11. Facebook Director James W. Breyer apparently oversaw the corrupting of Mexico. This NEW YORK TIMES article says Wal-Mart "fueled growth with bribes." Did Breyer bribe the Leader v. Facebook judges too? Does a zebra changes its stripes?

    See "The Bribery Aisle: How Wal-Mart Got Its Way
    in Mexico." THE NEW YORK TIMES, Dec. 17, 2012.

  12. Comment by: Law Blogger

    The attorney and judicial disciplinary committees need to have rotating civilian and legal memberships that focus on following the Rules (and the Law!) and don't have time to build crony constituencies to parlay favors.

    BTW. On James W. Breyer's Wal-Mart/Facebook Directorships. Follow the money.

  13. Comment by: Surfer Dude

    Seems that these Federal Circuit judges are invested in MANY James W. Breyer-funded deals (Accel Partners). No wonder they refused to disclose their financial conflicts of interests when Dr. Arunachalam asked them to. Dude, where's that fox who is guarding this hen house? LOL.

  14. Comment by: Stating the obvious

    Surfer Dude, you know where the fox is. He/she's out spending the Breyer bribes along with the judges. Seems like Breyer has been throwing his money around the mainstream media for a decade. Why do you think they've all systematically avoided covering Leader v. Facebook. For God's sake, Facebook is in front of the U.S. Supreme Court, yet not a peep. The cricket sounds are deafening!

  15. Comment by: Law Blogger

    The $64,000 question in Leader v. Facebook is whether the U.S. Supreme Court is going to sanction bribe-taking and influence-peddling by federal judges. Merely giving this case a pass on Jan. 4, 2013 in conference is all it will take to pronounce that blessing. The Banana Republic of the former United States of America. I pray on this Christmas Eve that our Supreme Court judges are better than that. King Herod murdered Bethlehem's male children under 2 years old to try and protect his greed, avarice and power-mongering.

  16. Comment by: The OPTIMIST!!!

    I'm thinking about this Scripture for our Supreme Court judges:

    "Hear the cases between your fellow countrymen, and judge righteously between a man and his fellow countryman"

    The Book of Deuteronomy 1:16

  17. Comment by: BG761 (I'm back!)

    Just read the post about the DC Bar's refusal to investigate attorney misconduct.

    We are getting to the time in which the Supreme Court makes a decision. Hopefully the court looks at the true facts of this case and then decides to hear the case on its merits not on the cover-up and in action by the Federal Circuit Court of Appeals.

    On the Federal Circuit Bar Association’s website, can scroll down the page to the heading “State of Patent Litigation“, and read comments by Chief Judge Randall R. Rader.

    On September 27, 2011 Chief Judge Randall R. Rader pointed out areas deserving of attention to improve patent litigation before the Eastern District of Texas bench and bar. He points out six areas that the courts need to focus their attention on. It is very discouraging reading because he says all the right things of what should be done but as we have seen the courts practice, they are so willing to be judicial activists instead of true judges.

    Judge Rader even disregards his own statements when he allowed the Federal Circuit not to listen to the Leader v. Facebook case En Banc. (I think this was all decided by Clerk of Court Jan Horbaly. I wonder if any of the judges saw anything frankly.)

    Chief Judge Rader also points out the definition of a “patent troll” and a “grasshopper”. He states on page 17:

    “For that reason, I have always preferred an alternative definition of a “troll,” namely, any party that attempts to enforce a patent far beyond its actual value or contribution to the prior art.”

    Leader Technologies does not fit his definition of a patent troll because it was proven in court that the core software that drives Facebook is Leader's software. And we know that if Zuckerberg had produced the 28 hard drives during Leader's discovery, this question would have been definitively settled.

    However, the courts allowed Facebook to play their games and influence the courts and staff with their cozy relationships and who knows what else? He then goes on to describe the grasshopper:

    “The IP grasshopper is the entity that is quick to steal the “inventor-ant’s” work and research investment because he did no work himself and the winter of competition approaches. We can recognize the grasshopper because he refuses to pay any license fee until his legs and claws are held to the proverbial litigation fire. Once again, a grasshopper is hard to define, but I can venture a description according to the same basic notion that helped us identify the troll: A grasshopper is any entity which refuses to license even the strongest patent at even the most reasonable rates.”

    You notice he uses the word “steal” and he describes Mark Zuckerberg to a T! Remember, Judge Rader used those words for the description not me.

    Let’s hope the Supreme Court Justices can see the merits of this case and what it will do to future patents if allowed to stand as is.

    BG761 8-O

  18. Comment by: EUREKA MOMENT

    AFI, you may have figured out what's wrong with Washington in addition to the Leader v. Facebook case! Imagine a company run by 50% of any one profession and common sense says you'll see a BROKEN organization.

    Think about it.

    Imagine a school run by 50% plumbers.
    Imagine a builder run by 50% accountants.
    Imagine a non-profit run by 50% hedge fund brokers.
    Imagine a water treatment plant run by 50% chemists.
    Imagine a farm run by 50% nurses.

    It doesn't work. Of course these organizations would be broken and couldn't get anything done... just like Washington DC. Too many attorneys! Eureka! We aren't crazy.

  19. Comment from: A very concerned mother

    Of course! Facebook's law firms just paid off the federal judges. They KNEW that all their crony attorneys who are politicians and who run the White House would not speak up against their "club." This MUST stop. NOW!!!

    Ladies and gentlemen: What kind of legacy is this profligacy for our children?

  20. Comment by: Law Blogger

    Read this news from the Supreme Court justices meeting on Friday. In that case the judge's impartiality was impugned by the judge participating in plea talks. The Federal Circuit's conduct in Leader v. Facebook is MUCH worse.

    Jonathan Stempel, "Supreme Court to review judge's role in plea talks." THOMSON REUTERS, 1/4/2013

    In Leader v. Facebook Judge Lourie and Judge Moore's own federal financial disclosure forms reveal that they held stock in Facebook via widely publicized T. Rowe Price and Fidelity Contrafund holdings in Facebook.

    T. Rowe Price (Judge Lourie's investments) held more than a 5% stake in Facebook at the IPO. The holding was so large that the SEC required Facebook to disclose it in the S-1. It's all there... in living color.

    If nothing else, the Lourie and Moore (and who else?) Facebook holdings impugned the "impartiality" of the Federal Circuit.

    Am I from another planet? Did these judges really think that they could get away with lining their pockets like this in such a high profile case? The silence of the mainstream media is deafening. I believe that Facebook has bought off all the mainstream news editors. They're like Jim Jones' people in Jonestown, Guyana. They've drunk the FB Kool-Aid. What happened to press independence?... Oh wait, they all have fat little offshore bank accounts. What was I thinking?

  21. Comment by: binky

    How much more blatant can you get than holding stock in Facebook, then ruling for Facebook anyway? ...after you just invalidated their evidence... but wait ... you made up new arguments for your precious Facebook. This conduct belongs in a zoo, not a hallowed US court. Are we not to expect justice any longer? C'mon Supreme's, restore the rule of law here


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