Tuesday, May 08, 2012

Facebook prevails over Leader Technologies

The bottom line in the case Because substantial evidence supports the jury’s verdict that Leader offered for sale and publicly demonstrated the claimed invention prior to the critical date and because the district court did not abuse its discretion in denying Leader’s motion for a new trial, we affirm.  

Of the evidence

We agree with Facebook that legally sufficient evidence supported the jury’s verdict that the version of Leader2Leader® demonstrated and offered for sale prior to the critical date was an embodiment of the asserted claims. Contrary to Leader’s arguments, the record is not devoid of the minimum quantity of evidence to support the jury’s verdict. First, Leader admitted in its interrogatory responses that Leader2Leader® powered by the Digital Leaderboard® engine “embodies” the asserted claims of the ’761 patent. Leader, 770 F. Supp. 2d at 717. Leader argues that, by employing the present tense, its admissions were limited to only the instance of the Leader2Leader® powered by the Digital Leaderboard® engine that existed at the time Leader served its re- sponses on Facebook. But Leader did not qualify its interrogatory responses in that manner. The responses did not specify any date ranges nor did they identify versions or builds of the software—information that Leader appears to have tracked, J.A. 25761.  


Coupled with Leader’s admission, the record contains legally sufficient evidence linking the pre-critical date software to the software that Leader admitted fell within the scope of the asserted claims. In its offer to Wright Patterson in January 2002, Leader offered for sale the exact software product that Leader admitted fell within the scope of the asserted claims—the Digital Leader- board® engine supplied under the Leader2Leader brand—and described that software as “fully developed” and “operational.” J.A. 27204, 27207. Like Leader’s admissions, Leader did not identify a specific build or version of the software in the offer for sale. Moreover, in the offer, Leader depicted the fully developed system as powering a browser-accessible “Big Board” that allows analysts and agencies to collaborate and share informa- tion, J.A. 27210, a disclosure that matches the embodiments of the ’761 patent in material respects, e.g., ’761 patent fig. 15, col.5 ll.14–17 (depicting a “screenshot of a management tool window of a browser used as a user interface to facilitate user interaction with meeting information in accordance with the present invention”).  


 Finally, regarding the jury’s decision to discredit McKibben’s trial testimony that the pre-critical date Leader2Leader® did not fall within the scope of the asserted claims, we generally agree with Leader that “[n]ormally,” a witness’s “discredited testimony is not considered a sufficient basis for drawing a contrary con- clusion.” Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 512 (1984). However, as recounted above, the record contains substantial evidence that the Leader2Leader® product that was on sale and in public use prior to the critical date fell within the scope of the asserted claims. At a minimum, McKibben’s lack of credibility fortifies that conclusion and provides an inde- pendent basis for disbelieving his factual assertions.
In upholding the verdict, we recognize that as a gen- eral matter a computer scientist can easily modify and change software code and that two versions of the same software product may function differently. (...) As for McKibben’s testimony that Leader was constantly revising the software and just completed the final version right after the pre-critical date demonstrations and offers for sale, the jury was entitled to disbelieve such a transpar- ently convenient assertion in light of all of the evidence before them. On appeal, we cannot reweigh the evidence or supplant the record. We are bound by the record developed below, viewed in the light most favorable to Facebook, and can only reverse the verdict if the record is critically deficient of the minimum quantity of evidence from which the jury might have reasonably rendered a verdict against Leader. Trabal, 269 F.3d at 249. Even if we may have reached a different verdict had we sat on the jury, it is not our role as an appellate court to overturn the jury’s verdict when it was supported by substantial evidence

Juicy Whip is cited:

 see also Juicy Whip, Inc. v. Orange Bang, Inc., 292 F.3d 728, 736–37, 738 (Fed. Cir. 2002). Because we presume that an issued patent is valid, 35 U.S.C. § 282, the party challenging the validity of a patent must prove by clear and convincing evidence that the product used or on sale prior to the critical date was embodied by the claimed invention, Juicy Whip, 292 F.3d at 736–37, 738. 


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