In its Order, the Board prohibited and permitted use of certain demonstrative slides by Patent Owner at the oral hearing. The Board noted that while demonstrative slides are visual aids to a party’s oral presentation, they cannot add new evidence to the record of the proceeding and are not an opportunity for additional briefing. Continue reading
Takeaway: A motion to exclude is for seeking the exclusion of evidence, not the exclusion of attorney argument. Also, argument made by counsel at oral hearing does not become evidence simply because it may appear in a transcript of the oral hearing.
In its Order, the Board sustained-in-part and overruled-in-part certain objections that Petitioner had made with respect to the propriety of certain of Patent Owner’s demonstrative exhibits. In particular, the Board sustained Petitioner’s objection to Patent Owner’s Exhibits 2006 and 2007; sustained Petitioner’s objection to Patent Owner’s Exhibit 2005 as to pages 7-12 and 15 and overruled Petitioner’s objection to Patent Owner’s Exhibit 2005 as to pages 19 and 20; ordered that Patent Owner’s Exhibits 2005, 2006, and 2007 be expunged; barred Patent Owner from using during the oral hearing any material from pages 7-11 and 15 of Exhibit 2005 or any material from either Exhibit 2006 or Exhibit 2007; and authorized Patent Owner to replace Exhibit 2005 with a new demonstrative exhibit. Continue reading
In its Order, the Board excluded certain slides of Patent Owner’s demonstrative exhibits. Petitioner objected to those slides because they contained (1) a new picture of Figure 2 that was not presented identically in the trial history; and (2) lines which had been altered in that figure. Patent Owner argued that the portions of the objected to slides are intended to be a tutorial on the patent at issue and are based on descriptions in its brief, but acknowledged that the graphics do not appear in the brief or other papers. Continue reading
Takeaway: Demonstratives used at an oral hearing should not be duplicative of documents already in the record, and should not present new evidence or argument. Instead, they should be a visual aid to the party’s presentation.
In its Order, the Board expunged Patent Owner’s demonstrative exhibits. Petitioner filed objections to certain Patent Owner demonstratives. Patent Owner stated that most of the demonstratives were duplicates of documents already in the record because it was unsure which materials it would be permitted to reference during oral argument, and that it may not rely on every page of the demonstratives. Continue reading
In its Order, the Board authorized Patent Owner to use certain demonstrative exhibits that were objected to by Petitioner. Petitioner had argued that the exhibits were improper because they did not appear in Patent Owner’s Response. Patent Owner agreed that the exhibits did not appear in its briefing, but argued that the exhibits demonstrated arguments made in the Patent Owner Response. Continue reading