Cross-Examination is Not Limited to Documents Cited in Declaration


In Medtronic, Inc. v. Endotach LLC, IPR2014-00100, Paper 32 (August 28, 2014), the petioner filed a Supplemental Notice of Deposition of patent owner’s witness, indicating that its cross-examination of the witness “may rely on,” among other things, a prior declaration by the witness filed in district court and three U.S. patents.  The patent owner requested a conference with the Board because such cross- examination necessarily would be outside the scope of the direct testimony set forth in his IPR Declaration.

The Board disagreed with the Patent Owner, noting:

We contemplate multiple scenarios in which other documents may be used for cross-examining a witness, while staying within the scope of his or her direct testimony. The fact that a document is not cited or discussed in a declaration is not dispositive for purposes of enforcing § 42.53(d)(5)(ii).


Topics:  Cross Examination, Patent Infringement, Patent Litigation, Patents

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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