Scope of Live Testimony in Final IPR Hearings

Scott Daniels | June 4, 2014

Last week we reported that in K-40 Electronics v. Escort (IPR2013-00203), the APJs had granted the Patent Owner’s request that its inventor be allowed to give live testimony on his invention’s conception date, presumably to remove the references as prior art.  The APJs explained that live testimony was appropriate in view of the type of testimony to be presented.  They set a procedure, however, in which the inventor first would be cross-examined by the Petitioner on his declaration, followed by re-direct examination by the Patent Owner.

The Petitioner has now asked for reconsideration of the grant of live testimony, explaining, inter alia, that it has “[n]o further questions” for the inventor.  If there is no cross by the Petitioner, there should be no re-direct by the Patent Owner.

The APJs cut through the back-and-forth between the parties and ordered a new schedule for the testimony:

  • the inventor’s testimony “will be limited to up to 30 minutes of direct testimony by Patent Owner’s counsel, followed by up to 30 minutes of cross-examination by Petitioner’s counsel, and any redirect examination will be at the discretion of the Board;”
  • the Petitioner may submit up to 30 minutes of video recording of inventor’s deposition testimony, no later than five business days after the final hearing;
  • the inventor’s live cross-examination by Petitioner’s counsel is optional; Petitioner may rely on the inventor’s deposition transcript, or the video record of that deposition, in lieu of or in addition to live cross-examination of the inventor at the hearing; and
  • the inventor’s direct examination “will be strictly limited to his declaration testimony in this proceeding and the scope of his cross-examination will strictly be limited to the scope of direct examination.”

Clearly, the APJs are experimenting with the oral hearing, but if the above schedule works here, it might become the standard.

In another procedural order regarding oral hearings, the APJs denied a request by the four Petitioners in Oracle v. Click-to-Call (IPR2013-00312) for one hour to make its argument, finding that 45 minutes for each side would be sufficient.

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