News & Analysis as of

Supplemental Evidence

Federal Circuit Reverses PTAB for Refusing to Allow Supplementation of Record to Add Later Inconsistent Deposition Testimony from...

The Board exercises substantial power over the scope of the record in IPRs, but the Federal Circuit’s decision in Ultratec v. CaptionCall illustrates a limit on that power. The case involved a collection of consolidated IPR...more

“A Reasonable Adjudicator Would have Wanted to Review this Evidence.”

In Ultratec, Inc. v. Captioncall, LLC., [2016-1706, 2016-1707, 2016-1708, 2016-1709, 2016-1710, 2016-1712, 2016-1713, 2016-1715, 2016-2366] (August 28, 2017), the Federal Circuit vacated and remanded Board decisions...more

It Pays to be Persistent if PTAB Rulings Violate Due Process Ultratec v. CaptionCall and Matal (Fed. Cir. 2017)

by Brinks Gilson & Lione on

In Ultratec, the Federal Circuit cited several problems with the Board’s permissive rules of trial proceedings and held the Board abused its discretion in its consideration of supplementary evidence. The Board’s regulations...more

Amgen v. Sandoz Appeal: Parties Submit Supplemental Briefing; Court Grants US Extension to File Amicus Brief

by Goodwin on

As we previously reported, following the Supreme Court’s June 12, 2017 decision in Sandoz v. Amgen, the Federal Circuit on July 26, 2017, issued an order recalling its October 23, 2015 mandate, reinstating the appeal, and...more

PTAB's Decision Not To Institute IPR Is Relevant In A Co-Pending ITC Investigation

by Brinks Gilson & Lione on

ITC complainant Aspen Aerogels, Inc. (“Aspen”) filed on March 24, 2017 a motion and supporting memorandum to reopen proceedings for receipt of additional evidence. In the Matter of: Certain Composite Aerogel Insulation...more

AMGEN Files Supplemental Brief in Sandoz v. AMGEN

by Goodwin on

On Tuesday, Amgen filed its supplemental brief opposing Sandoz’s petition for writ and responding to the Solicitor General’s brief, which we discussed here. In sum, the Solicitor General sided with Sandoz, stating...more

A Flood . . . in the Basement

by Farrell Fritz, P.C. on

Having examined countless witnesses in probate and other contested Surrogate’s Court proceedings, many of us have grown accustomed to learning that critical documents were destroyed by a “flood.” That flood, almost...more

Conflicting Defence Evidence Not Sufficient to Deny Class Certification

by Bennett Jones LLP on

The Divisonal Court’s recent decision in Dine v Biomet Inc, 2016 ONSC 4039 will be of particular interest to members of the class action bar in Ontario, as it will have implications for evidence led on certification motions....more

Rastafarian request for female-only support workers not justified by creed

by DLA Piper on

The Ontario Human Rights Tribunal has denied a request for accommodation by a Rastafarian man who claims that female-only support workers were required by his creed. The decision, Lionel Barker v St. Elizabeth Health Care,1...more

Attys Should Object to Boilerplate Discovery Objections

by Zelle LLP on

“Vague, ambiguous, overly broad, unduly burdensome and/or irrelevant.” All lawyers are certainly familiar with this “laundry list” of common discovery objections. However, the Federal Rules of Civil Procedure prohibit...more

Be Safe, Get Your Standing Evidence in Early

by Nexsen Pruet, PLLC on

A Land Use Practitioner representing opposition intervenors in a quasi-judicial land use matter is best served to present any evidence of special damages during the quasi-judicial hearing in order to preserve standing for...more

“Supplemental Evidence” Versus “Supplemental Information” (CaptionCall, LLC, v. Ultratec, Inc.)

by McDermott Will & Emery on

Addressing the requirements to offer supplemental evidence and information, the Patent Trial and Appeal Board (PTAB or Board) denied the patent owner’s requests for authorization to file a motion to submit supplemental...more

Federal Circuit Explores Expert Declaration as IPR Supplemental Evidence

Getting caught up on a Federal Circuit decision from late last year, we take a look at the Federal Circuit’s decision in Redline Detection, LLC v. Star Environtech, Inc. (2015-1047), decided on December 31, 2015. In this...more

Board Explains the Process for Evidentiary Objections—and Illustrates the Severe Penalty for Not Following It

Practitioners who are used to district court litigation may be surprised—and tripped up—by the rules for objecting to evidence in IPRs, which differ significantly from the approach used in litigation. The Board’s Final...more

Redline Detection, LLC v. Star Envirotech, Inc. (Fed. Cir. 2015)

The PTAB at the Federal Circuit -- Supplemental Evidence Edition - On New Year's Eve, the Federal Circuit affirmed the PTAB's denial of a motion to submit supplemental evidence pursuant to 37 C.F.R. § 42.123(a),...more

Court Requires Supplemented Contentions Regarding License Defense Prior To Early Summary Judgment Briefing

by Morris James LLP on

Plaintiff seeks an order compelling defendant to supplement its contentions regarding its license defense to provide the detail for claiming plaintiff is not licensed. Defendant may not avoid its obligations merely by...more

Board Discusses Difference Between Supplemental Evidence and Information

Still confused by the difference between supplemental evidence versus supplemental information? Let’s try this again….In Norman International, Inc. v. Andrew J. Toti Testamentary Trust, Russell L. Hinckley, Sr. (Co-Trustee)...more

Petitioners Cannot Respond to Substantive Issue Raised in Preliminary Response - VTech, Inc. v. Spherix Inc.

by McDermott Will & Emery on

Addressing whether a petitioner in an inter partes review (IPR) can respond to a patent owner’s preliminary response, the U.S. Patent and Trademark Office’s (PTO) Patent Trial and Appeal Board (PTAB or Board) denied the...more

Appellate Court Addresses Judicial Discretion As to Record on Appeal from Quasi-Judicial Decision

by Womble Bond Dickinson on

Last week, the North Carolina Court of Appeals addressed some unique issues with respect to the trial court record in an appeal of a quasi-judicial proceeding....more

Serial Objections to Evidence Are Not Required if Supplemental Evidence Is Filed and Served

by McDermott Will & Emery on

American Honda Motor Co., Inc. v. American Vehicular Sciences LLC - The U.S. Patent and Trademark Office Patent Trial and Appeal Board (PTAB or Board) concluded that a party need not renew an objection to evidence if...more

Get Your Prior Art Ducks in a Row Before Filing Your Inter Partes Review Petition

by McDermott Will & Emery on

National Environmental Products Ltd. v. Dri-Steem Corp.; PNC Bank National Ass’n v. Secure Axcess, LLC - In two recent decisions demonstrating that amending a petition for inter partes review (IPR) with supplemental...more

Prior Art-Related Submissions That Go to the Merits Are Supplemental “Evidence,” Not Supplemental “Information”

by McDermott Will & Emery on

FLIR Systems, Inc. v. Leak Surveys, Inc. - Addressing whether prior-art-related submissions by a petitioner in an inter partes review (IPR) proceeding are supplemental information under 37 C.F.R. 42.123(a) or...more

Serve But Don’t File Supplemental Evidence

In Stewart Title Guaranty Company v. Segin Software LLC, CBM2014-00051, paper 20 (August 13, 2014), the Board reminded parties that a party may rely on supplmental evidence when there is an objection to an Exhibit...more

Board Grants Rare Motion to Submit Supplemental Information

In general, all the evidence a party seeks to rely upon in an inter partes review must be contained in either the Petition (for Petitioner) or Patent Owner Response (for Patent Owner). 37 C.F.R. § 42.123 (b), however, allows...more

Board Addresses Procedure for Making Board Aware of Supplemental Evidence

There has been, to date, much confusion surrounding the propriety and timing of filing “supplemental evidence” with the Board. In Sealed Air Corporation v. Pergis Innovative Packing, Inc., IPR2013-00554 through...more

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