No Cross-Examination Of Expert At The Close Of Evidence

A.C. Dispensing Equipment Inc. v. Prince Castle LLC

Addressing the appropriate timing of cross-examination of expert witnesses in an inter partes review (IPR), the U.S. Patent and Trademark Office Patent Trial and Appeal Board (PTAB or Board) denied a patent owner's request to delay cross-examination of the petitioner's expert witness until after the due date of the petitioner's reply, finding that a witness' reply declaration is not supplemental evidence. A.C. Dispensing Equipment Inc. v. Prince Castle LLC, Case No. IPR2014-00511 (PTAB, Oct. 15, 2014) (Kamholz, APJ).

The patent owner sought to delay cross-examination of the petitioner's expert until either the petitioner's reply was filed or the deadline for the same had passed. The patent owner argued that under 37 C.F.R. § 42.53(d)(2), any new declaration submitted by the expert in support of the petitioner's reply would constitute supplemental evidence, and therefore cross-examination of the expert should be delayed until the close of evidence.

The PTAB disagreed, explaining that "the more efficient course . . . is to expect a party to conduct cross-examination of a witness once the witness's direct testimony becomes ripe for cross...