In K40 Electronics, LLC v. Escort Inc., IPR2013-00203, Paper 46 (August 27, 2014), the Board denied the patent owner’s motion to exclude. The Board first review the proper procedure for objecting to, and moving to exclude, evidence: When a party objects to evidence that was submitted during a preliminary proceeding, such an objection must be served within ten business days of the institution of trial. See 37 C.F.R. § 42.64(b)(1). Once a trial has been instituted, an objection must be served within five business days.  C.F.R. § 42.64(b)(1).The objection to the evidence must identify the grounds for the objection with sufficient particularity to allow correction in the form of supplemental evidence. C.F.R. § 42.64(b)(1). This process allows the party relying on the evidence to which an objection is served timely the opportunity to correct, by serving supplemental evidence within ten business days of the service of the objection. 37 C.F.R. §§ 42.64(b)(1), 42.64(b)(2). If, upon receiving the supplemental evidence, the opposing party is still of the opinion that the evidence is inadmissible, the opposing party may file a motion to exclude such evidence. 37 C.F.R. § 42.64(c).

The Board noted that the patent owner failed to indicate it served objections, and did not identify or explain its objections.  The Board denied the motion to exclude in view of the patent owner’s failure to comport with the requirements of 37 C.F.R. § 42.64.

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