No Surprises At Hearing; Demonstratives Must Only Contain Evidence of Record


In TriVascular, Inc. v. Shaun Samuels, IPR2013-00493, Paper 39 (September 2, 2014) the Board sustained a number of objections to the patent owner’s demonstrative exhibits. The Board agreed that modified versions of the patent drawings, and animations of the patent drawings “improperly display material not made of record previously in this proceeding” and barred the patent owner from using, citing, or relying upon this material during the hearing, but allowing the patent owner to replace the barred material, however, with evidence that was made of record timely in the case.  The Board also barred a demonstrative that did not exactly quote from evidence of record, but allowed the patent owner to substitute a demonstrative with exact quotation.  The Board did not bar material reproduced exactly from the cited record evidence, which was not previously relied upon, saying that this went to the weight that would be given, not to whether it could be presented.


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