Instructions from APJs on Rules of Evidence

Scott Daniels | March 18, 2013

When the patent owner filed its Preliminary Response in LKQ Corp. v. Clearlamp, LLC, IPR2013-00020, it challenged three references, taken from the Internet and relied upon in the Request.  These Internet references, the patent owner argued, were not authenticated, amounted to hearsay, and therefore should be excluded from the evidentiary record.

The APJs might simply have ignored the patent owners’ remarks, but chose instead to treat them as a motion to exclude the three references.  That motion, the APJs found, was premature because it failed to follow the procedural steps required by the applicable rule.  They explained:

When a party objects to evidence that was submitted during a preliminary proceeding, such an objection must be served within ten business days of the institution of trial.  The objection to the evidence must identify the grounds for objection with sufficient particularity to allow correction in the form of supplemental evidence.

 See 37 CFR § 42.64(b)(1) & (2).  Once this process is complete, and if the objecting party is still dissatisfied, it may file a motion to exclude.

In an aside that practitioners will note, the APJs acknowledged that “[w]ith few exceptions, the Federal Rules of Evidence apply to inter partes proceedings,” citing 37 CFR § 42.62.

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