United States Court of Appeals 

for the Federal Circuit 

__________________________ 

LEADER TECHNOLOGIES, INC. 

Plaintiff-Appellant, 

v. 

FACEBOOK, INC. 

Defendant-Appellee, 

__________________________ 

2011-1366 

__________________________ 

Appeal from the United States District Court for the 

District of Delaware in Case No. 08-CV-0862, Judge 

Leonard P. Stark. 

____________________________ 

Decided: May 8, 2012 

____________________________ 

DARYL L. JOSEFFER, King & Spalding, LLP, of Washington, DC, argued for plaintiff-appellant. With him on 

the brief was ADAM CONRAD. Of counsel on the brief were 

PAUL J. ANDRE and LISA KOBIALKA, Kramer Levin Naftalis & Frankel, LLP, of Menlo Park, California. 

THOMAS G. HUNGAR, Gibson, Dunn & Crutcher, LLP, 

of Washington, DC, argued for defendant-appellee. With 

him on the brief were WILLIAM G. JENKS and MICHAEL F.

MURRAY. Of counsel on the brief were HEIDI L. KEEFE and 
LEADER TECH v. FACEBOOK 2

MARK R. WEINSTEIN, Cooley, LLP, of Palo Alto, California, 

and MICHAEL G. RHODES, of San Francisco, California. 

__________________________ 

Before LOURIE, MOORE, and WALLACH, Circuit Judges. 

LOURIE, Circuit Judge. 

Leader Technologies, Inc. (“Leader”) appeals from the 

district court’s final judgment in favor of Facebook, Inc. 

(“Facebook”). The judgment follows a jury trial in which 

the jury found that Facebook proved that claims 1, 4, 7, 9, 

11, 16, 21, 23, 25, 31, and 32 (the “asserted claims”) of 

Leader’s U.S. Patent 7,139,761 (“the ’761 patent”) were 

invalid under 35 U.S.C. § 102(b). After trial, the district 

court denied Leader’s motion for judgment as a matter of 

law or, in the alternative, for a new trial on the invalidity 

issues. Leader Techs., Inc. v. Facebook, Inc., 770 F. Supp. 

2d 686 (D. Del. 2011). 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. 

BACKGROUND

I. 

This patent case relates to software that allows users 

on a network to communicate and collaborate on a large 

scale. Leader, a software company founded in the late 

1990s, owns the ’761 patent. Prior to filing the application that issued as the ’761 patent in December, 2003, 

Leader developed a product referred to as 

Leader2Leader®, and the central issue in this appeal is 

whether the Leader2Leader® product that was publicly 

used and on sale prior to December 10, 2002 fell within 
3 LEADER TECH v. FACEBOOK

the scope of the asserted claims, thus rendering them 

invalid under 35 U.S.C. § 102(b). 

The ’761 patent discloses a system that manages data 

that may be accessed and created by multiple users over a 

network. Broadly, the patent improves upon conventional 

systems by associating data “with an individual, group of 

individuals, and topical content, and not simply with a 

folder, as in traditional systems.” ’761 patent, col.3 ll.29–

31. 

The system achieves this improvement by having users collaborate and communicate through “boards” that 

are accessible through an Internet browser and appear as 

a webpage. For example, a board for a project might 

allow users affiliated with the project to set up meeting 

sessions with other users, id. col.15 ll.19–33, upload and 

share files, id. col.16 ll.54–64, vote on questions posted on 

the board, id. col.15 ll.46–49, or chat with other users, id.

col.17 ll.39–56. 

To facilitate those user-facing functions, the data 

management system employs metadata. Id. col.9 ll.50–

61. The metadata are “tagged” to data being created to 

capture the association between the data and its context. 

Id. col.9 ll.53–56. By tagging the data to a particular 

context, the system allows users to access the data to 

communicate and collaborate. Thus, “[a]s users create 

and change their contexts, the data (e.g., files) and applications automatically follow.” Id. col.7 ll.46–49. 

The ’761 patent’s claims are drawn to aspects of the 

data management system that enable users to collaborate 

and communicate. Claim 9, reproduced below, is exemplary of the asserted claims: 
LEADER TECH v. FACEBOOK 4

9. A computer-implemented method of 

managing data, comprising computer-executable acts of: 

creating data within a user environment of 

a web-based computing platform via 

user interaction with the user environment by a user using an application, the data in the form of at least 

files and documents; 

dynamically associating metadata with the 

data, the data and metadata stored 

on a storage component of the webbased computing platform, the 

metadata includes information related to the user, the data, the application, and the user environment; 

tracking movement of the user from the 

user environment of the web-based 

computing platform to a second user 

environment of the web-based computing platform; and 

dynamically updating the stored metadata 

with an association of the data, the 

application, and the second user environment wherein the user employs at least one of the application 

and the data from the second environment. 

Id. col.21 ll.38–58. In relation to the Leader2Leader® 

product, Leader’s founder, Michael McKibben, testified 

that the ’761 patent’s claims cover the “underlying engine,” J.A. 25585–86, which is referred to as Digital 

Leaderboard®, Leader, 770 F. Supp. 2d at 717. 
5 LEADER TECH v. FACEBOOK

The relevant case history begins in 1999. In August 

of that year, McKibben and Jeffrey Lamb conceived the 

invention claimed in the patent. Immediately after 

conceiving the idea, the inventors began developing 

software based on that idea with the goal of building a 

commercial product. In total, about fifteen to twenty 

people worked on the project. According to Lamb, Leader 

completed the project within “a couple of years . . . . 

[m]aybe three,” i.e., probably the “2002ish time frame.” 

J.A. 24829. 

Around that time, Leader offered the Leader2Leader® 

product for sale and demonstrated the product to a number of companies. In January 2002, Leader presented a 

white paper to people at the Wright Patterson Air Force 

Base offering 20,000 software licenses to the 

Leader2Leader® product. In the paper, Leader stated 

that it was “already commercializing” the product for 

“government, commerce and education,” J.A. 27203, and 

that the platform was “operational now with low user 

volumes,” J.A. 27207. Leader also represented that the 

Digital Leaderboard® software supplied under the 

Leader2Leader® brand had been “[f]ully developed.” J.A. 

27204. 

The white paper also discussed the functionality of 

Leader2Leader® powered by the Digital Leaderboard® 

system. The paper described the problem with the communications “glass ceiling,” in which data are aggregated 

into “silos,” and explained that Leader had “discovered 

and fixed a plethora of serious shortcomings and flaws in 

prevailing platform assumptions about mere aggregation 

vs. true integration of communications technologies.” J.A. 

27202. Leader attached to the paper a sample “Big 

Board” that depicted analyst collaboration and information flow between various agencies and stated that the 
LEADER TECH v. FACEBOOK 6

“Input & Display Collaboration Devices” for the system 

included a “Browser.” J.A. 27210. 

In November 2002, McKibben demonstrated the 

Leader2Leader® software to senior staff members at 

Boston Scientific, a demonstration that he described as 

“flawless.” J.A. 34694. According to Leader’s Vice President of Technologies, to support its clinical trials communications, Boston Scientific needed “a very secure system” 

to support “full document management functions” and 

“collaborative meetings/conferences,” among other functionality. J.A. 34694. He summarized that “in a nutshell” 

Boston Scientific was looking for Leader2Leader®. J.A. 

34694. 

By December 8, 2002, Leader had demonstrated and 

offered Leader2Leader® to a number of other companies, 

including American Express and The Limited. In its 

interaction with The Limited, Leader described 

Leader2Leader® as the company’s “full suite of technology services,” J.A. 34692, and explained that the software 

had “potentially strong fits” in managing project resources 

and allowing collaboration, among other areas, J.A. 

27221. Regarding American Express, according to 

McKibben, the head of technology architecture at American Express described the Leader2Leader® product as 

“disruptive technology” that will “create its own market.” 

J.A. 34692. After seeing the software, American Express 

put on hold its collaborative computing initiative and was 

considering investing in Leader. J.A. 27216, 34692. 

McKibben similarly described Leader’s prospects as 

requiring functionality such as “knowledge management,” 

“new product design collaboration,” “client collaboration,” 

and “file sharing.” J.A. 27215–16.

At the same time, Leader was struggling financially 

and was eager to obtain Leader2Leader® customers. By 
7 LEADER TECH v. FACEBOOK

December 3, 2002, Leader had deferred employee salaries 

and was facing an economic climate in which raising short 

term financing “ha[d] never been harder.” J.A. 27215. 

McKibben explained to Leader’s employees that a contract 

from Boston Scientific, The Limited, or American Express, 

among others, would change Leader’s valuation position 

with institutional investors. Indeed, according to McKibben, the “most significant factor” that would improve 

Leader’s negotiating position in valuation discussions was 

“the acquisition of ‘marquee’ paying customers.” J.A. 

27216. At that time, Leader also enlisted its prospects’ 

executives to help it obtain venture capital funding. 

However, although Leader and the general economy faced 

“rocky financial times,” McKibben explained that “[t]he 

bottom line is that we have built the product we said we 

would build” and that Leader was making every effort to 

sell that product in the marketplace. J.A. 27217. 

Leader filed a provisional patent application on December 11, 2002. On December 10, 2003, Leader filed an 

application that issued as the ’761 patent. 

II. 

In 2008, Leader sued Facebook in the United States 

District Court for the District of Delaware, alleging infringement of various claims of the ’761 patent. During 

discovery, Facebook served an interrogatory that asked 

Leader to identify all products and services that it contended practiced the claims of the ’761 patent. Leader 

provided two responses that were at issue during the 

litigation. In its First Supplemental Response, Leader 

asserted that “Leader2Leader® powered by the Digital 

Leaderboard® engine is covered by the ’761 patent.” 

Leader, F. Supp. 2d at 717. Thereafter, Leader amended 

its response to more specifically state that 

“Leader2Leader® powered by the Digital Leaderboard® 
LEADER TECH v. FACEBOOK 8

engine is the only product or service provided by Leader 

which embodies, either literally or under the doctrine of 

equivalents, any of the asserted claims” of the ’761 patent. 

Id. McKibben verified those interrogatory responses. 

Facebook also deposed McKibben. In his deposition, 

McKibben could not identify any iteration of the 

Leader2Leader® product that did not fall within the scope 

of the claims of the ’761 patent, testifying that “[t]hat was 

a long time ago. I – I can’t point back to a specific point.” 

Id. at 719. 

The interrogatory responses and McKibben’s deposition testimony were a focus at trial. At trial, McKibben 

testified that the interrogatory and Leader’s responses, by 

employing the present tense, were directed at whether 

Leader2Leader® practiced the ’761 patent’s claims in 

2009. McKibben also testified at trial that the 

Leader2Leader® product powered by the Digital Leaderboard® engine was covered by the asserted claims in 2007 

and 2010, but not prior to December of 2002. Specifically, 

McKibben testified at trial that he “vividly remember[ed]” 

that the patented technology was not incorporated into 

the Leader2Leader® product “until days before” the 

December 11, 2002 filing of the provisional patent application. J.A. 25708–09; see also Leader, 770 F. Supp. 2d at 

722 n.16. On cross-examination, Facebook played McKibben’s inconsistent deposition testimony before the jury. 

After the parties argued their positions to the jury, 

the jury returned a verdict in favor of Facebook on the onsale and public use bars. First, the jury specifically found 

that the ’761 patent was not entitled to the priority date 

of the provisional patent application, a finding that 

Leader does not challenge on appeal. The jury also specifically found that the asserted claims of the ’761 patent 

were invalid on two independent grounds: (1) that the 
9 LEADER TECH v. FACEBOOK

invention was subject to an invalidating sale; and (2) that 

the invention was subject to an invalidating public use. 

The district court thereafter denied Leader’s post-trial 

motions for judgment as a matter of law or, in the alternative, for a new trial. Specifically, regarding whether 

the Leader2Leader® product embodied the asserted 

claims prior to the critical date, the district court concluded that McKibben’s discredited trial testimony coupled with the interrogatory responses were sufficient 

evidence to support the jury’s verdict of invalidity. 

Leader, 770 F. Supp. 2d at 716–22. In addition, the court 

pointed to Leader’s offering of the Leader2Leader® product in the 2001 to 2002 time period as evidence supporting the jury’s verdict. Id. at 722 n.16. Finally, after 

exercising its own assessment of the evidence, the court 

concluded that the jury’s invalidity verdict was not 

against the great weight of the evidence. Id. at 727. 

The district court entered judgment against Leader, 

from which it timely appealed. We have jurisdiction 

under 28 U.S.C. § 1295(a)(1). 

DISCUSSION

I. 

We apply the law of the regional circuit, here the 

Third Circuit, to review the district court’s denial of 

Leader’s motion for judgment as a matter of law or for a 

new trial. Union Carbide Chem. & Plastics Tech. Corp. v. 

Shell Oil Co., 308 F.3d 1167, 1182, 1188 (Fed. Cir. 2002). 

Under Third Circuit law, we review de novo the denial of 

a motion for judgment as a matter of law, viewing the 

record in the light most favorable to the verdict winner 

and drawing all reasonable inferences in its favor. Eddy 

v. V.I. Water & Power Auth., 369 F.3d 227, 230 (3d Cir. 

2004). Under this review, “[a] court must not weigh 
LEADER TECH v. FACEBOOK 10

evidence, engage in credibility determinations, or substitute its version of the facts for the jury’s.” Pitts v. Delaware, 646 F.3d 151, 155 (3d Cir. 2011). Instead, we may 

reverse the district court’s denial of a motion for judgment 

as a matter law only if “the record is critically deficient of 

that minimum quantity of evidence from which a jury 

might reasonably afford relief.” Trabal v. Wells Fargo 

Armored Serv. Corp., 269 F.3d 243, 249 (3d Cir. 2001) 

(quoting Powell v. J.T. Posey Co., 766 F.2d 131, 133–34 

(3d Cir. 1985)). 

We review the denial of a new trial for an abuse of 

discretion. Foster v. Nat’l Fuel Gas Co., 316 F.3d 424, 

429–30 (3d Cir. 2003). Considered “extraordinary relief,” 

Marra v. Phila. Housing Auth., 497 F.3d 286, 309 n.18 (3d 

Cir. 2007), a new trial should be granted only if the great 

weight of the evidence cuts against the verdict and “where 

a miscarriage of justice would result if the verdict were to 

stand,” Sheridan v. E.I. DuPont de Nemours & Co., 100 

F.3d 1061, 1076 (3d Cir. 1996) (en banc). However, 

unlike a sufficiency of the evidence claim, a court in the 

motion for a new trial context “does not view the evidence 

in the light most favorable to the verdict winner, but 

instead exercises its own judgment in assessing the 

evidence.” Marra, 497 F.3d at 309 n.18. 

Under 35 U.S.C. § 102(b), a patent is invalid if “the 

invention was . . . in public use or on sale in this country” 

more than one year prior to the date the patent application is filed. “Whether a patent is invalid for a public use 

or sale is a question of law, reviewed de novo, based on 

underlying facts, reviewed for substantial evidence following a jury verdict.” Adenta GmbH v. OrthoArm, Inc., 501 

F.3d 1364, 1369 (Fed. Cir. 2007). One of those underlying 

facts is “whether the subject of the barring activity met 

each of the limitations of the claim, and thus was an 

embodiment of the claimed invention.” Scaltech Inc. v. 
11 LEADER TECH v. FACEBOOK

Retec/Tetra, L.L.C., 178 F.3d 1378, 1383 (Fed. Cir. 1999); 

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. 

II. 

In this case, Leader does not contest that a 

Leader2Leader® product was offered for sale and publicly 

used prior to December 10, 2002, the critical date. Nor, 

for the purposes of the on-sale bar, does Leader contest 

that the invention was “ready for patenting” prior to the 

critical date. See Pfaff v. Wells Elecs., Inc., 525 U.S. 55, 

67–68 (1998). Instead, Leader argues that Facebook 

failed to offer clear and convincing evidence that the 

version of Leader2Leader® offered for sale or used prior 

to December 10, 2002 fell within the scope of the asserted 

claims. Specifically, Leader argues that Facebook failed 

to offer any evidence, such as expert testimony, source 

code, or schematics, to prove when Leader incorporated 

the patented technology into the Leader2Leader product. 

Indeed, Leader argues that the only evidence at trial was 

testimony that showed that Leader did not use or offer for 

sale the invention until after the critical date. Leader 

asserts that even if the jury found that testimony incredible, incredible testimony is not affirmative evidence of its 

opposite, viz., that the invention was on sale or used prior 

to the critical date. Thus, argues Leader, Facebook failed 

as a matter of law to prove invalidity by clear and convincing evidence. In the alternative, Leader argues that 

the district court abused its discretion in denying its 

request for a new trial because the verdict of invalidity 

was against the great weight of the evidence. 
LEADER TECH v. FACEBOOK 12

Facebook responds that the district court properly entered judgment on the jury’s verdict of invalidity. Specifically, Facebook points to Leader’s internal documents and 

correspondence to potential customers, Leader’s interrogatory responses, and testimony by co-inventors Lamb 

and McKibben. Facebook also argues that the jury was 

permitted to weigh McKibben’s lack of credibility against 

Leader in rendering a verdict. Thus, in light of this 

evidence, Facebook argues that the district court properly 

denied Leader’s motion for judgment as a matter of law or 

for a new trial. 

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 responses 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. Indeed, 

consistent with a broader reading of Leader’s responses 

untethered to the precise moments in which the they were 

served, McKibben contended at trial that the 

Leader2Leader® powered by the Digital Leaderboard® 

engine not only fell within the scope of the asserted claims 
13 LEADER TECH v. FACEBOOK

in 2009 when Leader served its responses, but also in 

2007, before the lawsuit was initiated, and in 2010 during 

the trial. Leader, 770 F. Supp. 2d at 718. Moreover, in 

his deposition, McKibben could not identify a single 

instance of Leader2Leader® that did not fall within the 

scope of the ’761 patent’s claims. Id. at 719. 

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 Leaderboard® 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 information, 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”). 

This description is consistent with Leader’s other precritical date documents, which describe the software as 

facilitating the same type of user interaction described in 

the ’761 patent’s embodiments, such as document management, id. col.4 ll.24–31, collaborative meetings, id.

col.15 ll.19–33, and file sharing, id. col.16 ll.54–64. Those 

documents also state that, by December 3, 2002, Leader 

had “flawless[ly]” demonstrated the software, J.A. 34694, 
LEADER TECH v. FACEBOOK 14

which contained the company’s “full suite of technology 

services,” J.A. 34692, and had been “built,” J.A. 27217. 

In addition to Leader’s contemporaneous documents, 

Lamb’s trial testimony supports the jury’s finding that the 

Leader2Leader® product powered by the Digital Leaderboard® engine that was on sale and demonstrated prior to 

the critical date fell within the scope of the asserted 

claims. In particular, Lamb testified that, after conceiving the invention in August 1999, Leader immediately 

started to implement the patented technology and completed the project within “a couple of years . . . . [m]aybe 

three.” J.A. 24829. 

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 conclusion.” 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 independent basis for disbelieving his factual assertions. 

In upholding the verdict, we recognize that as a general matter a computer scientist can easily modify and 

change software code and that two versions of the same 

software product may function differently. But, in this 

case, Leader fails to point to any contemporaneous evidence in the record that indicates that the 

Leader2Leader® powered by the Digital Leaderboard® 

engine that existed prior to the critical date was substan-
15 LEADER TECH v. FACEBOOK

tively different from the post-critical date software; indeed, the evidence points in the opposite direction. 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 transparently 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. 

Similarly, we agree with Facebook that the district 

court did not abuse its discretion in denying Leader’s 

motion for a new trial. Facebook relied almost exclusively 

on Leader’s own admissions to prove invalidity and those 

documents, on their face, do not support Leader’s position. 

Thus, it was not in error to conclude that the verdict was 

not against the great weight of the evidence. Moreover, 

Leader fails to cogently explain on appeal why upholding 

the verdict would result in a miscarriage of justice. 

CONCLUSION

We have considered Leader’s remaining arguments 

and conclude that they are without merit. For the foregoing reasons, the judgment of the district court is 

AFFIRMED