COLUMBUS, Ohio July 26, 2011 Washington, D.C. Paul Andre Lisa Kobialka Daryl Joseffer Adam Conrad Delaware July 27, 2010
At trial, Facebook was judged to be "literally infringing" Leader’s U.S. Patent No. 7,139,761 on 11 of 11 claims, and the jury also found that the invention was not obvious over the published prior art. Put simply, this means that the software engine driving Facebook is Leader’s invention.
However, the jury found the patent invalid on the theory that Leader had engaged in premature commercial activity more than one year before the patent application was filed. According to Leader, while much evidence was presented on both sides regarding infringement and prior art, Facebook presented no evidence to support its allegations of early commercial activity. Facebook had the "heavy burden" to present "clear and convincing evidence" to prove its allegation that Leader disclosed the invention prematurely. The clear and convincing standard was recently reaffirmed by the Supreme Court in Microsoft v. i4i.
Leader argues that an attempt to invalidate computer software inventions requires hard evidence like source code, engineering documents, developer testimony, drawings, schematics and expert witnesses to prove early commercial activity. Facebook provided no such proof. Leader cites cases where invalidity verdicts were overturned when infringers failed to provide hard evidence.
The law on Facebook’s burden of proof requires Facebook to prove that each and every element of Leader’s invention was present in the alleged 2002 offers. Leader states that various products were sold in 2002, but none of them included the invention "because it did not exist at that time."
Leader argues that "if requiring clear and convincing evidence of invalidity is to be more than an empty semantic exercise, it must mean that the jury’s verdict here cannot stand."
Facebook’s response is due according to the court Rules.
Columbus, Ohio John Needham www.leader.com
SOURCE Leader Technologies