Some Observations on Observations

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In Hayward Industries, Inc. v. Pentainer Water Pool and Spa, Inc., IPR2013-00285, Paper 31, IPR2013-00287, Paper 31 (July 3, 2014), the Board provided some guidance on observations on cross-examination, answering the question whether a party can file observations on the cross-examination of its own witness. The Board expalined that the party taking the cross-examination files the observations.  Observations on cross-examination are not an opportunity to rehabilitate testimony given by a witness under cross-examination, and the Board cautioned that such observations would not be appropriate, citing CBS Interactive Inc. v. Wireless Science, LLC, IPR2013-00033, Paper 101, 3-5 (discussing the presentation of observations). Clarifying or otherwise rehabilitating testimony should be the subject of redirect of the witness after the cross-examination.

 

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