Deceptive legal tactics. Doctored testimony. Suppressed evidence. These are the charges, apparently valid, brought by Leader Technologies against Facebook in a legal case set to resume in four days.
If you haven’t heard of the Leader Technologies vs. Facebook case, you can be forgiven. Reporting on the case has been muffled, suppressed, and banished.
As Donna Kline writes: “Someone answer a question for me: Why hasn’t the mainstream media picked up on the Leader v. Facebook patent infringement case?”
The central issue in the case is whether Facebook’s platform is based on technology “borrowed” illegally from Leader Technologies. In July 2010, a jury found Facebook guilty of “literally infringing” on all 11 of the 11 Leader Technologies patents of which it was accused of violating.
Facebook’s lawyers were able to win a split decision to invalidate the patent on a technicality, called on-sale bar, using what Leader Technologies says was a bogus argument engineered by Facebook’s lawyers using deceptive legal tactics.
The basis for the on-sale argument is that the patented technology was available for sale before it was patented. However, the law requires Facebook to present clear evidence that this occurred. Although Leader Technologies provided the source code for the products in question, the code was never introduced or mentioned by Facebook’s lawyers.
Instead of showing any real proof, explained Mike McKibben, Chairman and Founder of Leader Technologies in an interview, Facebook’s lawyers took a black marker and blacked out large portions, about 60%, of his 2009 testimony in what is called Interrogatory No. 9, and presented the 2009 testimony as pertaining to 2002 products.
Said McKibben, “That’s public information. That’s a piece of evidence for anyone to see. There were whole sections of the answer just blocked out.”
Interrogatory No. 9, explained McKibben, “was a question about our products in 2009, not about our products in 2002. The jury became confused because Facebook alleged that it was an allegation about a product for all time. And we never said it did, there was no proof of that.”
These tactics, characterized as legal “black arts,” are reminiscent of the doctored videos introduced by Microsoft in its antitrust trial. The tactics employed by Facebook’s lawyers are explored in detail on a site called The Origin of Facebook's Technology?
Facebook's claims are baseless and can't be proven, according to McKibben. "We just weren’t selling the invention because it wasn’t ready yet," he said. "That’s what I kept saying at trial, and that’s what my co-inventor said at trial, and they didn’t produce a shred of evidence to prove that wasn’t true.”
If Leader Technologies' claims are true, it means that Mark Zuckerberg stole the technology that was at the heart of Facebook’s inception.
And that is what McKibben is claiming. “Our story is about the underlying framework of Facebook," he said. "Ours was the engine underneath it."
During the trial, it became clear that it was virtually impossible for Zuckerberg to have created Facebook’s technology platform in the timeframe he had to do so.
As Kline reports:
“Are people having a hard time believing that Zuckerberg actually copied a patent to create the FB platform? Are they more inclined to believe that he wrote the code for FB in ‘one to two weeks?’ When the platform in question took Leader Technologies 145,000 man hours and $10 million to create? Seriously?”
Similarly, the Origin of Facebook Technology? site asks, “How can a complete platform be conceived, researched, designed, written, edited, debugged and staged in under two weeks, by one person, while taking a full class load and studying for finals?”
Indeed, the original jury found that Facebook’s technology was lifted from Leader Technologies. And the U.S. patent Office has reaffirmed Leader Technologies' patents.
Said McKibben, “We do not believe that Facebook’s on-sale bar win is valid. They had no evidence, we believe the law is on our side, the facts are on our side, and we are going to prevail. As soon as we have that, we are going to go back to trial and go for damages, willful infringement, and an injunction to get Facebook to stop using our technology.”
Another good question posed by Kline is why was this case, which poses a significant risk to investors, is not mentioned in Facebook’s IPO filing?
This is a high-stakes dispute with big-time ramifications. As PRWeb notes, “If Leader Technologies prevails at appeal, Facebook could be subject to hundreds of millions of dollars in damages.”
And yet we have heard nary a peep about the case in the media? Why?