The admissibility of evidence is an important consideration for many PTAB proceedings. The procedures for objecting to and admitting evidence can be nuanced and, as often is the case with the PTAB, the devil is in the details. Panels are also quick to point out that non-precedential decisions from other panels have no binding effect such that different panels may operate under slightly different procedural rules. One panel clarified the process for handling evidentiary objections to shed some light on the correct manner of curing objections or challenging the admissibility of evidence.
The case of Taiwan Semiconductor Manufacturing Company, Ltd. v. Godo Kaisha IP Bridge 1, Case IPR2016-01249 and IPR2016-01264 (January 20, 2017 Order) clarified the process for objecting to evidence and the manner of curing such objections. Taiwan Semiconductor objected to evidence filed by Godo Kaisha, and Godo Kaisha filed supplemental evidence in an attempt to cure the objection. Taiwan Semiconductor then objected to the filing of the supplemental evidence, arguing it should have instead been served under 37 C.F.R. § 42.64(b)(1) and (2):
- Objection. Any objection to evidence submitted during a preliminary proceeding must be filed within ten business days of the institution of the trial. Once a trial has been instituted, any objection must be filed within five business days of service of evidence to which the objection is directed...
- Supplemental evidence. The party relying on evidence to which an objection is timely served may respond to the objection by serving supplemental evidence within ten business days of service of the objection.
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