Leader Technologies Inc. v. Facebook Inc.
Filing
650
ANSWERING BRIEF in Opposition re 626 MOTION for Judgment as a Matter of Law PLAINTIFF LEADER TECHNOLOGIES, INC.'S RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW OR A NEW TRIAL PURSUANT TO RULES 50(b) AND 59 OF THE FED. R. CIV. P. MOTION for Judgment as a Matter of Law PLAINTIFF LEADER TECHNOLOGIES, INC.'S RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW OR A NEW TRIAL PURSUANT TO RULES 50(b) AND 59 OF THE FED. R. CIV. P. filed by Facebook Inc.(a Delaware corporation).Reply Brief due date per Local Rules is 9/27/2010. (Caponi, Steven)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
LEADER TECHNOLOGIES, INC.,
a Delaware corporation,
Plaintiff and Counterdefendant,
v.
FACEBOOK, INC.,
a Delaware corporation,
Defendant and Counterclaimant.
)
) CIVIL ACTION
)
)
) No. 1:08-cv-00862-LPS
)
)
)
)
)
)
)
)
DEFENDANT FACEBOOK, INC’S OPPOSITION TO PLAINTIFF’S
MOTION FOR JUDGMENT AS A MATTER OF LAW AND FOR A NEW TRIAL
Steven L. Caponi (DE Bar No. 3484)
BLANK ROME LLP
1201 Market Street
Wilmington, DE 19801
Phone: (302) 425-6400
Fax:
(302) 425-6464
Attorneys for Defendant and
Counterclaimant Facebook, Inc.
Of Counsel:
Michael G. Rhodes
Heidi L. Keefe
Mark R. Weinstein
Jeffrey T. Norberg
COOLEY LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, CA 94306
Phone: (650) 843-5000
Fax: (650) 857-9663
Dated: September 15, 2010
TABLE OF CONTENTS
Page No.
I.
INTRODUCTION ......................................................................................................... 1
II.
ARGUMENT................................................................................................................. 2
A.
Leader Failed To Preserve Its Grounds for Judgment as a Matter of Law............ 2
1.
2.
B.
Leader’s Pre-Verdict Motions Were Inadequate Under Rule 50(a) .......... 3
Leader’s Post-Verdict “Rule 50(a)” Motion Was Without Legal
Effect ...................................................................................................... 4
Substantial Evidence Supports The Jury’s Findings Against Leader.................... 5
1.
Substantial Evidence Supported The Jury’s Verdict of Invalidity
Based on the On-Sale Bar ....................................................................... 5
a.
Substantial Evidence Supported the Jury’s Finding that
Leader2Leader Embodied the Asserted Claims............................ 5
b.
Substantial Evidence Supported the Jury’s Finding that the
Invention was the Subject of a Commercial Offer of Sale .......... 10
c.
Substantial Evidence Supported the Jury’s Finding that the
Alleged Invention was “Ready for Patenting”............................ 12
d.
Substantial Evidence Supports the Jury’s Finding that the
Asserted Claims of the ’761 Patent Are Not Entitled to the
Priority Date of the Provisional Application .............................. 14
2.
Substantial Evidence Supported The Jury’s Verdict of Invalidity
Based on the Public Use Bar ................................................................. 16
3.
Substantial Evidence Supported the Jury’s Rejection of Leader’s
“Experimental Use” Defense................................................................. 17
C.
D.
III.
A Reasonable Jury Could Have Found That Leader Failed To Carry Its
Burden on Control or Direction ........................................................................ 18
Leader Provides No Basis for A New Trial....................................................... 19
CONCLUSION............................................................................................................ 20
-i-
TABLE OF AUTHORITIES
Page No.
CASES
Allen Eng’g Corp. v. Bartell Indus., Inc.,
299 F.3d 1336 (Fed. Cir. 2002) .......................................................................................... 18
Cummings v. Adidas USA,
No. 08 Civ. 9860(SAS), 2010 WL 2076975 (S.D.N.Y. May 24, 2010)............................. 6, 9
Duro-Last, Inc. v. Custom Seal, Inc.,
321 F.3d 1098 (Fed. Cir. 2003) ............................................................................................ 3
Eolas Techs. Inc. v. Microsoft Corp.,
399 F.3d 1325 (Fed. Cir. 2005) .......................................................................................... 16
Evans Cooling Sys., Inc. v. Gen. Motors Corp.,
125 F.3d 1448 (Fed. Cir. 1997) ............................................................................................ 6
Geo M. Martin Co., v. Alliance Mach. Sys. Int’l LLC,
Nos. 2009-1132, ___ F.3d ____, 2010 WL 3275967 (Fed. Cir. Aug. 20, 2010) ............ 13, 14
Group One, Ltd. v. Hallmark Cards, Inc.,
254 F.3d 1041 (Fed. Cir. 2001) .......................................................................................... 11
Honeywell Int’l, Inc. v. Nikon Corp.,
672 F. Supp. 2d 638 (D. Del. 2009) ................................................................................... 11
In re Theis,
610 F.2d 786 (C.C.P.A. 1979)............................................................................................ 18
Klein v. Hollings,
992 F.2d 1285 (3d Cir. 1993)............................................................................................. 19
Lightning Lube, Inc. v. Witco Corp.,
4 F.3d 1153 (3d Cir. 1993)........................................................................................2, 3, 5, 8
Lucent Techs., Inc. v. Newbridge Networks Corp.,
168 F. Supp. 2d 181 (D. Del. 2001) ............................................................................. 19, 20
MLMC, Ltd. v. Airtouch Communications, Inc.,
215 F. Supp. 2d 464 (D. Del. 2002) ............................................................................. 11, 12
Muniauction, Inc. v. Thomson Corp.,
532 F.3d 1318 (Fed. Cir. 2008) .......................................................................................... 19
Pfaff v. Wells Elecs., Inc.,
525 U.S. 55 (1998) ........................................................................................................ 5, 12
Power Oasis, Inc. v. T-Mobile USA, Inc.,
522 F.3d 1299 (Fed. Cir. 2008 ........................................................................................... 15
Price v. Delaware Dept. of Correction,
40 F. Supp. 2d 544 (D. Del. 1999) ..................................................................................... 19
RCA Corp. v. Data Gen. Corp.,
887 F.2d 1056 (Fed. Cir. 1989) ........................................................................................ 5, 6
-ii-
TABLE OF AUTHORITIES
Page No.
Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133 (2000)......................................................................................................... 5, 8
Sonoscan, Inc. v. Sonotek, Inc.,
936 F.2d 1261 (Fed. Cir. 1991) ............................................................................................ 5
Vanmoor v. Wal-Mart Stores, Inc.,
201 F.3d 1363 (Fed. Cir. 2000) ............................................................................................ 6
Williams v. Runyon,
130 F.3d 568 (3d Cir. 1997)................................................................................................. 3
Williamson v. Consol. Rail Corp.,
926 F.2d 1344 (3d Cir. 1991)............................................................................................. 19
Wittekamp v. Gulf & Western Inc.,
991 F.2d 1137 (3d Cir. 1993)............................................................................................... 5
STATUTES
35 U.S.C. § 102(b)..........................................................................................................5, 11, 16
Federal Rules of Civil Procedure 50 ...................................................................................... 3, 4
Federal Rules of Civil Procedure 59 ........................................................................................ 19
-iii-
I.
INTRODUCTION
Having weighed all the evidence and assessed the credibility of the witnesses, the jury in
this case unanimously found that the asserted claims of the ’761 patent are invalid because
Leader offered to sell and publicly disclosed its claimed invention more than one year before the
effective filing date of the ’761 patent application. The jury also unanimously concluded that
Facebook does not control or direct the actions of its users or employees. Because Leader
provides no basis for setting aside any of these findings, its motion should be denied.
With respect to the jury’s findings of invalidity, Leader’s principal argument is that
Facebook did not show that Leader2Leader, the product that it offered for sale and publicly
demonstrated before the critical date, embodied the asserted claims of the ’761 patent. This
argument ignores the fact that Leader repeatedly admitted, in sworn interrogatory responses, in
pre-trial deposition testimony and in trial testimony, that Leader2Leader embodied the asserted
claims. The sole question for the jury was not whether the product embodied the claims, but
when it did so. The answer to that question turned on the credibility of Mr. McKibben and
whether the jury believed his (1) pre-trial deposition testimony in which he could not identify
any prior version of Leader2Leader that did not embody the asserted claims; or (2) his concocted
and contradictory “recollection” at trial that Leader2Leader did not embody the asserted claims
until shortly before December 11, 2002. The jury was entitled to discount Mr. McKibben’s
contradictory story at trial in assessing his credibility and weighing the evidence – and it did so.
The jury also heard substantial evidence supporting the other elements of the on sale and
public use defenses. The evidence at trial established that Leader made commercial offers for
sale of Leader2Leader to at least three third parties, which included specific quantities, pricing,
and delivery terms among others. The evidence also established that, more than one year before
the effective filing date of the ’761 patent, Leader discussed Leader2Leader with third parties
more than a thousand times and demonstrated the product in fully operational form to numerous
of those third parties. Because even one offer for sale or unprotected disclosure invalidates a
patent, the jury had more than substantial evidence to find an invalidating public use.
1
The jury also properly concluded that the provisional application did not disclose all
elements of any of the asserted claims. The jury heard named inventor Jeff Lamb testify under
oath at his deposition that Leader’s provisional application lacked support for at least one
element of each asserted claim of the ’761 patent. Mr. Lamb’s conclusion was supported by
expert testimony at trial. The jury certainly had sufficient evidence to conclude – and did in fact
conclude - that the claims were not entitled to the provisional application’s filing date.
With regard to Leader’s infringement claims, the jury properly concluded that Leader did
not establish that Facebook controlled or directed the actions of its users or employees. This is
an essential element of all of Leader’s theories of infringement. The sole evidence Leader
submitted to show control or direction of users was Facebook’s terms of service, which are
insufficient. Leader offered no evidence that Facebook controls or directs its own employees
with respect to any of the steps recited in the asserted claims. As explained below and in
Facebook’s co-pending Motion for Judgment as a Matter of Law (Motion No. 1), the Federal
Circuit has repeatedly affirmed summary judgment or JMOL against plaintiffs that presented
considerably more evidence of control or direction than Leader presented here.
For the
foregoing reasons and the reasons explained below, Leader’s motion should be denied.
II.
ARGUMENT
A.
Leader Failed To Preserve Its Grounds for Judgment as a Matter of Law
As a threshold matter, Leader’s motion should be denied as procedurally barred because
Leader failed to make an adequate pre-verdict motion to preserve the specific grounds argued in
its post-trial motion. Third Circuit law is clear that: “A motion for judgment as a matter of law
pursuant to Rule 50(b) must be preceded by a Rule 50(a) motion sufficiently specific to afford
the party against whom the motion is directed with an opportunity to cure possible defects in
proof which otherwise might make its case legally insufficient.” Lightning Lube, Inc. v. Witco
2
Corp., 4 F.3d 1153, 1173 (3d Cir. 1993) (emphasis in original).1 A motion brought under Rule
50(a) “may be made at any time before the case is submitted to the jury. The motion must
specify the judgment sought and the law and facts that entitle the movant to the judgment.” Fed.
R. Civ. P. 50(a)(2). Accordingly, “a [party’s] failure to raise an issue in a Rule 50(a)(2) motion
with sufficient specificity to put the [other party] on notice waives the [moving party’s] right to
raise the issue in their Rule 50(b) motion.” Williams v. Runyon, 130 F.3d 568, 571-72 (3d Cir.
1997). Because Leader did not comply with the specificity requirements of Rule 50(a), its
“renewed” motion under Rule 50(b) fails as a matter of law.
1.
Leader’s Pre-Verdict Motions Were Inadequate Under Rule 50(a)
Leader’s entire pre-verdict motion under Rule 50(a), as to both the on sale and public use
defenses, was limited to the following statement:
Number three, judgment as a matter of law that the invention
covered by any of the asserted claims of U.S. Patent Number
7,139,761 was not in public use or on sale by Leader Technologies
more than one year prior to the effective filing date and the
asserted claims of U.S. Patent Number 7,139,761 are therefore not
invalid for that reason.
Ex.2 A at 1714:3-10.
Leader did not identify a single basis for its motion, providing Facebook with no
opportunity to cure the alleged evidentiary deficiencies Leader now argues in its opening brief.
See D.I. 626 at 4-11. Leader therefore waived its right to bring a motion for judgment as a
matter of law on the on sale/public use defenses under Rule 50(b). Leader also failed to make
any pre-verdict motion several other issues it now raises in its opening brief, specifically whether
Facebook exercised “control or direction” over its users and employees, or whether the offers for
1
Third Circuit law governs the question of whether Leader’s pre-verdict JMOL motion was
sufficient under Rule 50(a). See, e.g., Duro-Last, Inc. v. Custom Seal, Inc., 321 F.3d 1098, 1106
(Fed. Cir. 2003) (regional circuit law governs procedure for new trial and JMOL motions).
2
Citations to “Ex. __” refer to cited exhibits attached to the Declaration of Jeffrey T. Norberg in
Support of Facebook’s Opposition to Leader’s Motion for Judgment as a Matter of Law and
Motion for New Trial, filed concurrently herewith.
3
sale and public uses of Leader2Leader were “experimental uses.” Because Leader failed to even
mention these issues in its pre-verdict JMOLs, it is barred from raising those issues now.
2.
Leader’s Post-Verdict “Rule 50(a)” Motion Was Without Legal Effect
Rule 50(a) is clear that a motion under that rule must be filed “before the case is
submitted to the jury.” Fed. R. Civ. P. 50(a)(2). Leader told the Court after making its oral
JMOL motions that it reserved the right to file a written submission on its Rule 50(a) motion.
See Ex. A at 1733:24-1734:4. Leader did not file that submission, however, until six days after
the jury verdict was entered. D.I. 612. That post-verdict “Rule 50(a)” motion, for the first time,
articulated grounds for Leader’s pre-verdict oral motions and made additional motions that were
never previously made.
Leader’s belated motion is a nullity that must be disregarded in
determining whether Leader complied with the specificity requirements of Rule 50(a).
Leader will likely argue that the Court gave it permission to file its post-verdict belated
Rule 50(a) motion, but such an argument is unavailing. On the last day of trial and after
apparently realizing that it had neglected to file its promised written Rule 50(a) submission,
Leader requested for permission to file its motion after the verdict. The Court indicated that this
was “acceptable,” but the Court never authorized Leader to exceed the scope of its oral preverdict JMOL motions, nor did it excuse Leader from the specificity requirements of Rule 50(a).
See Ex. A at 1898:10-19. Nor could it have. Allowing a party to articulate its Rule 50(a)
grounds after the verdict, too late for the opposing party to address those alleged deficiencies in
its proof, would defeat the very purpose of the rule. See Fed. R. Civ. P. 50, Advisory Committee
Notes to 1991 Amendment (“Paragraph (a)(2) retains the requirement that a motion for judgment
be made prior to the close of the trial, subject to renewal after a jury verdict has been rendered.
The purpose of this requirement is to assure the responding party an opportunity to cure any
deficiency in that party’s proof that may have been overlooked until called to the party’s
attention by a late motion for judgment.”). Leader’s renewed motion under Rule 50(b) must
therefore be judged entirely by the content of Leader’s pre-verdict oral JMOL motions, which
were insufficient for the reasons discussed above.
4
B.
Substantial Evidence Supports The Jury’s Findings Against Leader
In order to prevail on its JMOL motion, Leader must show that, “viewing the evidence in
the light most favorable to the nonmovant and giving it the advantage of every fair and
reasonable inference, there is insufficient evidence from which a jury” could have made the
findings that it did. Lightning Lube, 4 F.3d at 1166 (citing Wittekamp v. Gulf & Western Inc.,
991 F.2d 1137, 1141 (3d Cir. 1993)). “Credibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.”
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000) (citation omitted). As
explained below, the jury’s findings that the asserted claims were invalid under 35 U.S.C. §
102(b), and that Leader failed to prove that Facebook controls or directs the actions of its users
and employees, are supported by substantial evidence.
1.
Substantial Evidence Supported The Jury’s Verdict of Invalidity
Based on the On-Sale Bar
Facebook prevailed on its on-sale bar defense by presenting the jury with clear and
convincing evidence that (1) Leader2Leader, which embodied the asserted claims of the ’761
patent, was subject to a commercial offer for sale more than one year prior to the patent’s
effective date; and that (2) the invention was ready for patenting. See Pfaff v. Wells Elecs., Inc.,
525 U.S. 55, 67 (1998). The jury heard ample evidence as to both elements.
a.
Substantial Evidence Supported the Jury’s Finding that
Leader2Leader Embodied the Asserted Claims
Leader devotes a substantial portion of its opening brief to the assertion that Facebook
did not present sufficient evidence that Leader2Leader embodied the asserted claims of the ’761
patent. Leader’s primary argument is that Facebook was required to conduct an element-byelement technical comparison of Leader2Leader against the claims of the ’761 patent. Federal
Circuit law is clear, however, that no such requirement exists: “That the offered product is in
fact the claimed invention may be established by any relevant evidence, such as memoranda,
drawings, correspondence, and testimony of witnesses.” Sonoscan, Inc. v. Sonotek, Inc., 936
F.2d 1261, 1263 (Fed. Cir. 1991) (quoting RCA Corp. v. Data Gen. Corp., 887 F.2d 1056, 1060
5
(Fed. Cir. 1989)) (emphasis added). For example, the Federal Circuit has repeatedly held that
when a patent owner admits in litigation that a particular product practices the claimed invention,
that admission is sufficient to sustain the defendant’s burden that the product anticipates the
claims for purposes of an on sale bar. See, e.g., Vanmoor v. Wal-Mart Stores, Inc., 201 F.3d
1363, 1366 (Fed. Cir. 2000); Evans Cooling Sys., Inc. v. Gen. Motors Corp., 125 F.3d 1448,
1451 (Fed. Cir. 1997); see also Cummings v. Adidas USA, No. 08 Civ. 9860(SAS), 2010 WL
2076975, at *4 (S.D.N.Y. May 24, 2010). The cases cited in Leader’s opening brief address the
situation in which the parties disagree on the question of whether the offered product ever
practiced the claimed invention. Those cases have no applicability when, as here, the accused
infringer relies on the patent owner’s own admissions to show that the offered product embodies
the claimed invention.
In Vanmoor, for example, the Federal Circuit affirmed summary judgment of invalidity
based on pre-critical date sales of caulking gun cartridges. 201 F.3d at 1365. The court rejected
the patent holder’s argument that the defendants had not carried their burden of establishing that
“the cartridges that were the subject of the pre-critical date sales anticipated the claims of [the]
patent.” Id. at 1366. The court explained that although the defendants “bore the burden of
proving that the cartridges that were the subject of the pre-critical date sales anticipated [the
patent], that burden was satisfied by [plaintiff’s] allegation that the accused cartridges infringe
[the patent].” Id.; see also Cummings, 2010 WL 2076975, at *4 (accused infringer met its
burden under Vanmoor by relying on patentee’s allegations and discovery admissions that
accused products embody the asserted claims).
To prove that Leader2Leader practiced the asserted claims, Facebook presented Leader’s
sworn interrogatory responses, the deposition testimony of Mr. McKibben and documentary
evidence. See Ex. A at 1201:15-21, 1377:14-19; Ex. B (DTX0963-R); Ex. C (DTX0969-R); Ex.
D (DTX0179) at LTI_048198, 203.
In particular, Facebook presented two interrogatory
responses in which Leader admitted that “Leader2Leader® powered by the Digital
Leaderboard® engine is covered by the ’761 Patent.” Id. Ex. B (DTX0963-R) at 4; see also Ex.
6
C (DTX 0969-R) at 46 (“Leader2Leader® powered by the Digital Leaderboard® engine
embodies the following asserted claims of the ’761 Patent: 1-17, 21, 23-26, 29, and 31-34.”).
These admissions were unequivocal and not qualified in any way. Each of the three pre-critical
date commercial offers for sale introduced by Facebook was for Leader2Leader. The earliest of
those three offers in January 2002, for example, was for the “Digital Leaderboard™ System
software . . . supplied under the brand name Leader2Leader™ . . . . ” Ex. D (DTX0179) at
LTI_048200.
Leader’s unqualified interrogatory admissions would have been sufficient,
standing alone, to carry Facebook’s burden of proof on his issue. But there was more.
Facebook also presented the pre-trial deposition testimony of Mr. McKibben, testifying
as Leader’s founder, CEO, lead inventor of the ’761 patent and Leader’s corporate designee
under Rule 30(b)(6) on the topic of whether Leader2Leader practices the asserted claims.3 Mr.
McKibben confirmed during that deposition that Leader2Leader practices the claims of the ’761
patent. Id. Ex. A at 1201:15-21. When asked whether he could identify any previous version of
Leader2Leader that did not practice the claims, Mr. McKibben testified that he could not:
Q.
Can you identify any iteration of the Leader2Leader
product that, in your opinion, did not implement what’s
claimed in the ’761 patent?
A.
That was a long time ago. I – I can’t point back to a
specific point.
Id. Ex. A at 1377:14-19.
In an attempt to avoid its interrogatory responses and other pre-trial admissions, Leader
came up with an entirely new story at trial – that Leader2Leader did not incorporate the
3
Mr. McKibben served as Leader’s Rule 30(b)(6) designee as to all deposition topics specified
in Facebook’s notice. Two of those topics dealt directly with the identity of versions of
Leader2Leader that practiced the ’761 patent. See Ex. E at 5 (Topic 14: “The identity of each
version or each LTI product and/or service that LTI contends practices one or more asserted
claims of the ’761 Patent, including Leader2Leader, and the manner in which such product
and/or service allegedly practices the claimed invention.”), id. at 4 (Topic No. 5: “The
conception, design, research, experimental work, development, reduction to practice,
examination, analysis, testing, evaluation, sales, marketing and public use of each version of
each LTI product, including Leader2Leader.”).
7
technology of the ’761 patent until shortly before the filing of Leader’s provisional patent
application on December 11, 2002. See Ex. A at 1316:2-13, 1320:20-1321:16, 1324:23-1325:17,
1327:2-1327:19. In particular, Mr. McKibben asserted at trial that the Leader2Leader product
referenced in Leader’s offers for sale did not practice the claims of the ’761 patent because “that
technology was not done until a few days before December 11, 2002.” Ex. A at 1327:7-10.
The question presented to the jury, therefore, was not whether Leader2Leader practiced
the asserted claims of the ’761 patent in 2002 (as Leader repeatedly admitted it did), but when.
The answer to that question turned on the credibility of Mr. McKibben’s trial testimony that the
technology of the ’761 patent “was not done until a few days before December 11, 2002.” Id. at
1327:9-10. The jury was properly instructed that in weighing that testimony, it should consider
“the witness’s biases, prejudices or interests; the witness’s manner or demeanor on the witness
stand; and all circumstances that, according to the evidence, could affect the credibility of the
testimony.” D.I. 601 at 10, Jury Instruction 1.7. The jury was further instructed that if it could
not reconcile contradictions between Leader’s pre-trial and trial testimony, “it is your duty and
privilege to believe the testimony that, in your judgment, is most believable and disregard any
testimony that, in your judgment, is not believable.” Id. Contrary to Leader’s claim that the jury
was required to disregard the entirety of Mr. McKibben’s testimony if they found him not
credible, the jury was entitled to credit Leader’s and Mr. McKibben’s pre-trial deposition
testimony, and discredit any contrary testimony offered at trial. And that is precisely what it did.
The jury saw Leader’s trial testimony as what it was – a self-serving and last-minute
fabrication to salvage an invalid patent, and the jury’s rejection of it is not subject to attack
through a JMOL motion. See Lighting Lube, 4 F.3d at 1166 (“In determining whether the
evidence is sufficient to sustain [the verdict], the court may not weigh the evidence, determine
the credibility of witnesses, or substitute its version of the facts for the jury’s version.”). As the
Supreme Court has noted, “although the court should review the record as a whole [in
considering a JMOL motion], it must disregard all evidence favorable to the moving party that
the jury is not required to believe.” Reeves, 530 U.S. at 151.
8
But even if there was a legal basis to second-guess the jury’s assessment of the evidence,
the jury’s conclusion was clearly a correct one. Mr. McKibben offered no explanation for his
on-the-stand, after-the-fact and surprising recollection of the precise date on which
Leader2Leader first included the invention of the ’761 patent. His assertion that the ’761
technology “was not done until a few days before December 11, 2002” was unsupported by any
facts.
Mr. McKibben did not, for example, identify a single facet of Leader2Leader that
underwent any change in 2002 (or at any other time), let alone any change significant enough to
affect whether or not the product practiced the ’761 patent. Mr. McKibben’s proposal to WrightPatterson Air Force Base in January 2002 – eleven months before the date Mr. McKibben
claimed at trial that the technology was “done,” portrayed Leader2Leader as a fully-functioning
product for facilitating on-line collaboration. See Ex. D (DTX0179) at LTI_048198, 203. In the
end, Mr. McKibben’s trial testimony depended on the jury believing the implausible notion that
the version of Leader2Leader that Mr. McKibben offered earlier in 2002 – and for which Leader
was seeking many millions of dollars – did not implement the invention on which the entire
product was allegedly based.
In Cummings v. Adidas, supra, Judge Scheindlin of the Southern District of New York
recently entered summary judgment of invalidity based on the on-sale bar under facts strikingly
similar to those presented here. The plaintiff/patentee in that case admitted in discovery that a
particular shoe practiced the asserted claims of the patent. Cummings, 2010 WL 2076975, at *2.
The defendant relied on this admission and filed a motion for summary judgment of invalidity.
The plaintiff sought to avoid the effect of its admissions by arguing that older versions of the
product did not practice the claimed invention. The court rejected this argument, noting that “[i]f
plaintiffs wanted to accuse some AJXV shoes but not others, they had a duty to qualify their
responses appropriately. They did not.” Id. at *5. As in Cummings, if Leader had a basis for
claiming that earlier versions of Leader2Leader did not practice the ’761 patent, it would have
qualified its interrogatory responses or identified those versions during Mr. McKibben’s
9
deposition, as he was required to do under Rule 30(b)(6). Mr. McKibben’s self-serving attempts
to do so at trial were properly rejected by the jury. 4
Finally, even if the jury had credited Mr. McKibben’s implausible story that
Leader2Leader did not practice the ’761 patent until “a few days before December 11, 2002,” it
could still have found the claims invalid based on evidence at trial of actual sales or offers of sale
of Leader2Leader to The Limited, Boston Scientific and several other companies that may have
occurred in those same days before the critical date. In particular, Facebook introduced an email dated December 8, 2002 authored by Mr. McKibben following-up on what he called
“numerous developments on the sales front.” Ex. F (DTX0766); Ex. A at 1304:1-1306:21. In
that e-mail, Mr. McKibben wrote: “We have confirmation now from both the COO, Len
Schlessinger, and the CIO, Jon Ricker [of The Limited], that we will acquire a significant
contract in January for their implementation of Leader2Leader®.” Ex. F (DTX0766) (emphasis
added). In that same document, Mr. McKibben similarly claimed that Leader was “well down
the path toward a contract for us to supply Leader2Leader” to Boston Scientific. Id. The
document continued by discussing other recent efforts to sell Leader2Leader to Netcom
Solutions and “A Major Japanese Bank.” Of course, December 8, 2002 is a “few days” before
December 11, 2002. The jury therefore could have reasonably found that Leader offered to sell
or sold the patented technology even during the “few days” window when Leader now claims the
’761 technology was first incorporated into Leader2Leader.
b.
Substantial Evidence Supported the Jury’s Finding that the
Invention was the Subject of a Commercial Offer of Sale
Leader’s contention that Facebook did not present sufficient evidence of a commercial
offer for sale is similarly unavailing. Whether a communication qualifies as a commercial offer
4
Leader’s claim that co-inventor Jeff Lamb “confirmed” Mr. McKibben’s testimony is false.
D.I. 626 at 10, n.3. At trial Jeff Lamb only testified that his references to Leader2Leader
sometimes included references to other Leader products. Ex. A at 469:8-470:21. Mr. Lamb did
not confirm Mr. McKibben’s on-the-stand sudden recollection that the technology of the patent
was not included in Leader2Leader until just a few days before the filing of the provisional
patent application.
10
for purposes of the on sale bar is determined by reference to federal common law.
See
Honeywell Int’l, Inc. v. Nikon Corp., 672 F. Supp. 2d 638, 642-43 (D. Del. 2009) (Farnan, J.)
(citing Group One, Ltd. v. Hallmark Cards, Inc., 254 F.3d 1041, 1046 (Fed. Cir. 2001)). Factors
that may be considered in determining whether a “commercial offer” has been made include the
language used by the parties, the circumstances surrounding the making of the offer and whether
the offer includes detailed terms. Honeywell, 672 F. Supp. 2d at 642-43. Leader’s claim that a
reasonable jury could not have found that Leader’s communications to The Limited, Boston
Scientific and Wright Patterson were commercial offers is without merit.
Leader’s written submission to Wright-Patterson Air Force Base (“WPAFB”) identified
Leader as the “offeror” and provided a detailed offer for selling Leader2Leader, including the
number of licenses to be sold (20,000), the price for those licenses ($8,400,000) and the
timeframe for implementation (end of Q1 2002). Ex. D (DTX0179) at LTI_048202, 204-205.
Leader’s written offer to The Limited included the actual word offer: “I’d like to offer you the
following sweetheart deal[,]” including the number of licenses to be provided (2,000), the term
of those licenses (3 years) and the price ($1.5 million, or “$20.83 per user per month.”). Ex. G
(DTX0185) (emphasis added). And the fact that Leader offered to sell Leader2Leader to Boston
Scientific was confirmed by Leader employee Steve Hanna in an October 10, 2002 internal
Leader e-mail that said: “L2L: we have verbally committed to selling a system to Boston
Scientific…” Ex. H (DTX0184). This evidence was more than sufficient for the jury to find that
Leader2Leader was the subject of at least three commercial offers of sale, notwithstanding that
only one offer was required to sustain the jury’s finding of invalidity based on the on sale bar.
Leader cites MLMC, Ltd. v. Airtouch Communications, Inc., 215 F. Supp. 2d 464 (D. Del.
2002) for the proposition that communications that include prices do not necessarily constitute
commercial offers for purposes of § 102(b). The court in MLMC found insufficient evidence of
an offer where the defendant offered testimony that a patentee provided “budgetary quotations”
to serve as a starting point for negotiations, but without submitting the actual quotations into
evidence, and which did not include other traditional contract terms such as delivery dates. Id. at
11
480. Significantly, Judge Robinson found the absence of words such as “I offer” to be a
significant factor in finding that no commercial offer took place. Id. Here, the offers to sell to
WPAFB and The Limited included all of the necessary and specific terms one would expect to
find in a commercial offer, including price, number of licenses, duration and delivery, along with
express language indicating that Leader was making a commercial offer of sale. Further, the jury
could have reasonably believed Leader’s internal e-mail in which it admitted that it “verbally
committed to selling [Leader2Leader] to Boston Scientific.” Ex. H (DTX0184).
Mr. McKibben attempted at trial to deny that his communications with these third parties
were offers to sell Leader2Leader, but that presented nothing more than a credibility question for
the jury. Mr. McKibben’s deposition testimony, moreover, made it easy for the jury to discredit
his trial testimony. In a November 3, 2002 e-mail, Mr. McKibben wrote: “We had a phenomenal
selling week last week. The Limited www.limited.com just committed to contracting with
Leader for LeaderPhone(r) and Leader2Leader(tm).” Ex. I (DTX0186). When asked during his
deposition whether this was true (which was played for the jury), Mr. McKibben characterized it
as “hyperbole” or “an overstatement to make a point that we had a good meeting.” Ex. A at
1231:17-1232:7. The jury could properly have considered Mr. McKibben’s tendency to diminish
the significance of damaging communications with third parties in assessing the credibility of his
attempts to deny that he made offers to sell Leader2Leader. D.I. 601 at 10, Jury Instruction 1.7.
c.
Substantial Evidence Supported the Jury’s Finding that the
Alleged Invention was “Ready for Patenting”
An accused infringer may show that an alleged invention was “ready for patenting” in at
least two ways: “by proof of reduction to practice before the critical date; or by proof that prior
to the critical date the inventor had prepared drawings or other descriptions of the invention that
were sufficiently specific to enable a person skilled in the art to practice the invention.” Pfaff,
525 U.S. at 67-68. Leader presented evidence at trial that the alleged invention of the ’761
patent was conceived before January 1, 2000. Ex. A at 1382:1-5. And Facebook presented
12
substantial evidence that the Leader2Leader product embodying the asserted claims of the ’761
patent was actually reduced to practice before the critical date.
Mr. McKibben testified during his deposition that the collaborative technology claimed in
the patent at issue was implemented as early as 2001 or 2002:
Q.
At some point there came a time when you had a product
implemented; correct?
A.
Well, as was -- software is never finished, so even version
one of a product is not implemented in the sense that it’s
perfect. But we were confident of a fairly stable design by
’98 and then we started coding and -- now these are rough
time frames, but I would say we were coding -- well, we
haven’t stopped coding, so a fairly stable collaborative
environment was working by I’m going to say
2001/2002 time frame.
Ex. A at 1200:6-17 (emphasis added). Mr. McKibben’s deposition testimony was corroborated
by Leader’s January 9, 2002 written proposal to WPAFB, in which Leader stated that “the
Leader2Leader™ platform is operational now with low user volumes.” Ex. D (DTX0179) at
LTI_048203 (emphasis added). In that same document, Leader said that the Digital Leaderboard
system of Leader2Leader was “[f]ully developed at private expense.” Id. at LTI_048200.
The jury was also presented with evidence that Leader demonstrated the functionality of
Leader2Leader to third parties as early as December of 2001 and throughout 2002. See Ex. J
(DTX0178) at LTI_014125 (December 8, 2001: COO of The Limited agrees to endorsement
“after his latest viewing of the Leader2Leader™ platform[].”); Ex. K (DTX0181) (August 29,
2002 e-mail: “Mike had 2 demos on Tuesday (one to the State of OH Police who are interested in
the L2L platform) . . .”). The fact that Leader2Leader was operational and the subject of
functional demonstrations to third parties obviously indicates that it was reduced to practice, and
was more than sufficient to sustain the jury’s conclusion that the alleged invention was ready for
patenting.
The claims do not recite any required user volume, so operation at “low user
volumes,” Ex. D (DTX0179), fully satisfies the claims. See Geo M. Martin Co., v. Alliance
13
Mach. Sys. Int’l LLC, Nos. 2009-1132, 2009-1151, ___ F.3d ____, 2010 WL 3275967, at *8
(Fed. Cir. Aug. 20, 2010) (prior art that did not work at “production speed” could still satisfy
patent claim that did not require any particular speed).
Leader argues that Facebook “effectively conceded” that the invention was not ready for
patenting by December 10, 2002 when it argued that the provisional application did not support
the claims of the issued patent. This argument is based on twisted and flawed logic because the
content of the provisional application is independent of the functionality of Leader2Leader. The
evidence at trial, for example, established that while Leader2Leader was fully operational in
2002, Leader did not fully disclose the details of its operation in its sparse provisional
application. Leader’s own expert, Dr. Herbsleb, admitted that the source code contained in the
provisional application was incomplete and relied on “import” statements referencing other,
undisclosed code. Ex. A at 1855:1-1863:15. The fact that Leader chose to prepare and file an
incomplete provisional application does not diminish the fact that the underlying Leader2Leader
software was “ready for patenting” at that time.
d.
Substantial Evidence Supports the Jury’s Finding that the
Asserted Claims of the ’761 Patent Are Not Entitled to the
Priority Date of the Provisional Application
The testimony of at least three witnesses (i.e. Jeff Lamb, Professor Greenberg, Dr.
Herbsleb) supported the jury’s conclusion that the provisional application does not disclose each
and every element of any asserted claim. First, co-inventor Jeff Lamb testified (via deposition
testimony played at trial) that elements in each independent claim, such as tracking movement of
users and associating metadata with user created content, were not disclosed in the provisional
application.
Ex. A at 1182:1-1186:21.5
Second, Professor Greenberg provided extensive
testimony about the differences between the provisional application and the issued claims, and
5
Although Mr. Lamb later attempted to alter this deposition testimony via an errata, Mr. Lamb
testified at trial that he did not intend to make any substantive changes to his testimony and that
his deposition was accurate. Ex. A at 467:3-17. The jury could properly have given the errata
little to no weight in assessing whether the provisional application supported the issued claims.
14
explained why the provisional neither disclosed nor enabled those claims. See generally, Ex. A
at 1402:20-1403:2, 1407:19-1444:12, 1447:11-20. Third, as noted above, even Dr. Herbsleb
admitted that the source code in the provisional (on which he relied for many claim elements)
was incomplete. Id. at 1855:1-1863:15. That Leader does not agree with the testimony of these
three witnesses provides no basis for overturning the jury’s verdict.6
Leader’s reliance on the work of Dr. Herbsleb’s post-doctoral student Dr. Cataldo, who
did not appear as a witness at trial, does not warrant overturning the jury’s verdict. On crossexamination, Dr. Herbsleb admitted that the report created by Dr. Cataldo referenced claim
elements (such as the “context component” and “tracking component”) that do not appear in the
provisional application and appeared for the first time in the later-filed application. Ex. A at
1867:12-19; Ex. L (PTX-3). Further, Dr. Herbsleb testified that he did not oversee Dr. Cataldo’s
work, and all he knew regarding whether Dr. Cataldo referenced any outside materials in
conducting this experiment was “what he told me. . . .” Ex. A at 1865:14-24. Dr. Herbsleb also
admitted that, as the ’761 patent is publicly available, Dr. Cataldo “had access to [the ‘761
patent] as does everyone.” Id. at 1867:15-1868:3. Dr. Herbsleb further admitted that Dr.
Cataldo never built any actual working product in connection with this work. Id. at 1868:11-20.
Furthermore, the jury could easily have found that Dr. Cataldo’s skill far exceeded that of one of
ordinary skill in the art at the time the application was filed, rendering his work unreliable. D.I.
601 at 39, Jury Instruction 4.6 (“Leader may rely on the filing date of its provisional
application . . . if the application teaches one of ordinary skill in the art to make and use the
claimed invention of the ‘761 patent, and to do so without undue experimentation.”). Dr.
Cataldo has a Ph.D., not a bachelor’s degree, and ten years of experience – placing him well
6
Leader’s motion also incorrectly places the burden of proof on Facebook. See D.I. 626 at 18
(“That kind of analysis does not rise to the level of clear and convincing evidence . . . .”). The
Court’s jury instructions were clear that it was Leader’s initial burden to prove, by a
preponderance of the evidence, that the ’761 patent is entitled to the priority date of the
provisional application by. D.I. 601 at 36, Jury Instruction 4.4. See also Power Oasis, Inc. v. TMobile USA, Inc., 522 F.3d 1299, 1304-06 (Fed. Cir. 2008) (patentee must show entitlement to
priority application that contained less disclosure than earlier application).
15
beyond a person of ordinary skill in art. See Ex. A at 1864:8-20, 1740:16-1741:2, 1406:10-22.
The lack of any testimony by Dr. Cataldo, the likelihood that he relied on materials outside the
provisional application, the fact that he never built a working product, and the fact that he did not
even qualify as a person of ordinary skill in the art, provided an overwhelming basis for the jury
to disregard Dr. Herbsleb’s second-hand account of Dr. Cataldo’s unreliable experiment.
2.
Substantial Evidence Supported The Jury’s Verdict of Invalidity
Based on the Public Use Bar
Leader argues that Facebook did not present sufficient evidence of a public use because,
according to Leader, any disclosures of Leader2Leader were subject to confidentiality
restrictions. Instruction 4.6 correctly instructed the jury that: “The disclosure of the invention to
even a single third party may qualify as a ‘public’ use provided that the third party was under no
legal obligation to the inventor to maintain its secrecy.” D.I. 601 at 39, Jury Instruction 4.6; see
also Eolas Techs. Inc. v. Microsoft Corp., 399 F.3d 1325, 1334 (Fed. Cir. 2005) (disclosure of
invention to two individuals who were under no obligation of secrecy could constitute public use
under § 102(b)). Mr. McKibben testified at trial that he had more than a thousand meetings with
third parties, before filing the patent application, during which Leader2Leader was discussed.
Ex. A at 1289:3-1291:17. The jury only needed to find a single unprotected disclosure of
Leader2Leader to reach its verdict of invalidity based on public use. D.I. 601 at 39, Jury
Instruction 4.6.
Facebook submitted evidence that Mr. McKibben provided a demonstration of
Leader2Leader to Boston Scientific on November 25, 2002, but did not have a signed NDA from
Boston Scientific until the next day. Ex. A at 1297:6-1299:19; Ex. M (DTX0736); Ex. N
(DTX0776). The only signed NDA with Boston Scientific in evidence was provided by Boston
Scientific (not Leader), and said nothing about protecting the earlier demonstration of
Leader2Leader. See Ex. M (DTX0736). Mr. McKibben attempted to explain this discrepancy
by claiming that other individuals with Boston Scientific had signed earlier NDAs, but he never
identified those NDAs during trial. Ex. A at 1363:20-1364:7. This failure was particularly
16
telling given that Leader entered thousands of NDAs into evidence (DTX0725), yet could not
identify a single one that covers the November 25 demonstration to Boston Scientific. A
reasonable jury could have properly concluded, based on just the demonstration to Boston
Scientific, that the asserted claims were invalid based on public use. Moreover, given the
pervasive credibility problems with Mr. McKibben’s testimony as discussed above, the jury
could have simply discredited his testimony that the thousands of disclosures of Leader2Leader
were all made under NDAs.
3.
Substantial Evidence Supported the Jury’s Rejection of Leader’s
“Experimental Use” Defense
The jury’s verdict in favor of Facebook on the on-sale bar and public use defenses
necessarily means that the jury rejected Leader’s argument that its offers for sale and public
disclosures were experimental uses.
The jury was properly instructed that once Facebook
satisfied its burden of establishing an offer for sale or public use, the burden shifted to Leader to
show that any such offers or public displays were made for experimental purposes. D.I. 601 at
43, Jury Instruction 4.8. The jury’s instruction noted in relevant part that:
The experimentation must relate to the features of the claimed
invention, and it must be for the purpose of technological
improvement, not commercial exploitation. A test done primarily
for marketing, and only incidentally for technological
improvement, is not an experimental use, but a public use. If any
commercial exploitation does occur, it must be merely incidental to
the primary purpose of experimentation.
Id. (emphasis added).
The jury reasonably concluded that the primary purpose of the offers for sale and public
disclosures of Leader2Leader was commercial exploitation. The evidence on this point was
overwhelming. Leader’s offer to Wright Patterson required a payment to Leader of $8,400,000
for Leader2Leader licenses (Ex. D (DTX0179) at LTI_048204) and the offer to The Limited
required payment of $1.5 million (Ex. G (DTX0185)).
Moreover, Leader’s employees
characterized the offer to Boston Scientific as being commercial in nature by admitting that
17
Leader had committed to “selling” Leader2Leader. Ex. H (DTX0184). With so many millions
at stake, it is hard to imagine that the jury could have concluded that these offers and disclosures
had anything other than commercial purposes. See Allen Eng’g Corp. v. Bartell Indus., Inc., 299
F.3d 1336, 1355 (Fed. Cir. 2002) (holding that amounts to be paid is a factor in determining
whether use was experimental or commercial).
The references to “beta testing” in some of Leader’s offers do not render them
“experimental uses” under the law.
Federal Circuit law is clear that “[e]xperimentation
conducted to determine whether [a product] would suit a particular customer’s purposes does not
fall within the experimental use exception.” Id. at 1355 (citing In re Theis, 610 F.2d 786, 792
(C.C.P.A. 1979)). Leader admits in its motion that the purpose of its offer to Wright-Patterson
was directed to tailor a product to Wright Patterson’s needs rather than as part of an internal
testing program: “the whole point of the project was to jointly develop solutions to allow
intelligence agencies to share data more easily.” D.I. 626 at 12 (emphasis in original). The
dollar amounts and other details included in the offers to The Limited and Boston Scientific, as
well as Leader’s numerous demonstrations to potential customers (including Boston Scientific),
provide a sufficient basis for a reasonable jury to have concluded that Leader failed to carry its
burden on the experimental use exception.
C.
A Reasonable Jury Could Have Found That Leader Failed To Carry Its
Burden on Control or Direction
With respect to Leader’s assertion that Facebook infringed claims 9, 11 and 16, the jury
found that Leader failed to show that Facebook controls or directs the actions of its users and
employees. This verdict is supported by substantial evidence. With respect to Facebook users,
the only evidence offered by Leader to show control or direction consisted of the existence of
Facebook’s terms of service – terms that in no way require users to interact with the site. See,
e.g., Ex. O (PTX-628) at LTI_000722 (“Although we provide rules for user conduct and
postings, we do not control and are not responsible for what users post, transmit or share on the
18
Site . . . . The Company is not responsible for the conduct, whether online or offline, of any user
of the Site or Service.”). To show control or direction over Facebook employees, Leader offered
documents and testimony suggesting, at best, that Facebook employees test the website’s
functionality from time to time. D.I. 626 at 19. Leader offered no evidence that Facebook
employees actually perform any of the specific method steps of the asserted claims, nor any
evidence that Facebook requires its employees to do so. In light of this failure, there is no basis
for disregarding the jury’s determination that Leader failed to carry its burden of proof on this
issue.
Leader’s motion for JMOL on the “control or direction” relies on evidence so weak that it
actually supports JMOL in favor of Facebook. As explained in Facebook’s pending motion for
JMOL of Non-Infringement (Motion No. 1), Leader’s evidence is insufficient as a matter of law
under controlling law. See Muniauction, Inc. v. Thomson Corp., 532 F.3d 1318, 1330 (Fed. Cir.
2008) (“That [defendant] controls access to its system and instructs bidders on its use is not
sufficient to incur liability for direct infringement.”); see D.I. 632, Facebook’s JMOL No. 1 at 710. The jury’s verdict on this issue should therefore be left undisturbed.
D.
Leader Provides No Basis for A New Trial
Motions for a new trial are governed by Fed. R. Civ. P. 59. Leader has limited its new
trial motion to a single unsupportable ground: that “the jury’s verdict is against the clear weight
of the evidence, and a new trial must be granted to prevent a miscarriage of justice[].” Lucent
Techs., Inc. v. Newbridge Networks Corp., 168 F. Supp. 2d 181, 251 (D. Del. 2001) (Farnan, J.).
In that very case, however, the court noted that “the court should proceed cautiously, because
such a ruling would necessarily substitute the court’s judgment for that of the jury.” Id. (citing
Klein v. Hollings, 992 F.2d 1285, 1290 (3d Cir. 1993)). Judge Farnan further cautioned “a new
trial should only be granted where ‘a miscarriage of justice would result if the verdict were to
stand,’ the verdict ‘cries out to be overturned,’ or where the verdict ‘shocks our conscience.’” Id.
(quoting Williamson v. Consol. Rail Corp., 926 F.2d 1344, 1352 (3d Cir. 1991)); see also Price
v. Delaware Dept. of Correction, 40 F. Supp. 2d 544, 550 (D. Del. 1999)).
19
Leader’s alternative new trial motion is premised entirely on two faulty premises. First,
Leader relies on the Lucent case for the proposition that the Court need not view the evidence in
light most favorable to the prevailing party when deciding whether to grant the motion. D.I. 626
at 20. As discussed above, Judge Farnan in Lucent cautioned against granting a new trial when
doing so would require the court to substitute its own judgment for that of the jury’s. Lucent,
168 F. Supp. 2d at 251. As discussed in greater detail above, the jury’s verdict on the on-sale bar
and public use defenses turned largely on the jury’s determination of Mr. McKibben’s credibility
and its assessment of conflicting evidence. These determinations present classic jury questions,
and the jury’s reasonable findings do not meet the high “shock the conscience” standard
necessary to obtain a new trial.
Leader’s second argument, that the jury’s verdict “rests entirely on speculative
inferences[,]” is simply false. D.I. 626 at 20. Leader does not specify which inferences it claims
warrant a new trial, and none are apparent from the face of Leader’s motion. As discussed
above, Facebook relied on sworn admissions and extensive documentary evidence in support of
each element of Facebook’s on-sale bar and public disclosure defenses. Leader’s unsupported
claim that the jury made unreasonable inferences provides no basis for a new trial.
III.
CONCLUSION
For the foregoing reasons, Leader’s motion should be denied.
Dated: September 15, 2010
By: /s/ Steven L. Caponi
Steven L. Caponi (DE Bar No. 3484)
BLANK ROME LLP
1201 Market Street
Wilmington, DE 19801
Phone: (302) 425-6400
Fax:
(302) 425-6464
Of Counsel:
Michael G. Rhodes
Heidi L. Keefe
Mark R. Weinstein
Jeffrey T. Norberg
COOLEY LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, CA 94306
Phone: (650) 843-5000
Fax: (650) 857-9663
Attorneys for Defendant and
Counterclaimant Facebook, Inc.
20
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