Order Denying Motion for Leave to File Motion to Exclude IPR2013-00595

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Takeaway: Unless there is a compelling reason, the Board will not entertain motions to exclude prior to the time stated in the scheduling order.

In its Order, the Board denied Patent Owner’s Motion to File a Motion to Exclude the Testimony of Petitioner’s witness. Patent Owner argued that Petitioner’s witness indicated during his deposition that he had not read the principal reference relied upon by Petitioner in its entirety, and was unwilling or unable to respond to questions about the reference or to testify whether the teachings of certain references could be combined.  Patent Owner filed without authorization a “rough copy” of the witness’s deposition transcript with exhibits.  Petitioner responded that Patent Owner’s contentions are “harsh mischaracterizations” and that any weaknesses in its witness’s testimony relate to the weight of his testimony, not the admissibility.

The Board noted that the scheduling order sets forth a timetable for filing motions to exclude evidence and that both parties will have an opportunity to address these issues on that timetable. Motions to exclude are not authorized until after the time for taking discovery has ended, and the Board found no compelling reasons to deviate from that timetable.  The Board also stated that it will not reach a decision based on a rough deposition transcript; therefore, if the Patent Owner files a timely motion to exclude, it should attach the final transcript.  The Board expunged the rough transcript and its exhibits from the record.

Fujian Newland Computer Co., Ltd. v. Hand Held Products, Inc., IPR2013-00595
Paper 25: Order on Conduct of the Proceeding
Dated: May 27, 2014
Patent 7,568,628
Before: Kevin F. Turner, Bryan F. Moore, and Patrick M. Boucher
Written by: Boucher