Board Explains Observations on Cross Examination

Explore:  Cross Examination

In an Order for the Conduct of the Proceedings in Atrium Medical Corp. v. Davol, Inc., [IPR2013-00189], Paper 48 (February 28, 2014), the Board advised the patent owner that each item included as an observation on cross-examination should be precise, preferably no more than one short sentence in the explanation of relevance. Observations on cross-examination are not meant to serve the purpose of an argumentative surreply. The relevance of record portions noted, relative to the observed cross-examination testimony, should “jump-out” upon notice. If more than one or two sentences are required to explain such relevance, the observations likely is improper.

An observation (or response) is not an opportunity to raise new issues, to re-argue issues, or to pursue objections. Each observation should be in the following form:

In exhibit __, on page __, lines __, the witness testified __. This testimony is relevant to the __ on page __ of __. The testimony is relevant because __.

The entire observation should not exceed one short paragraph. The Board may decline consideration or entry of excessively long or argumentative observations (or responses). A rule of reason applies to so called “combined” observations of more than one item.

Topics:  Cross Examination

Published In: Civil Procedure Updates, Intellectual Property Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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