LKQ Corp. v. Clearlamp, LLC
IPR2013-00020, Paper No. 17, Mar. 5, 2013
Patent No. 7,297,364
Petitioner LKQ Corp. submitted web pages as prior art (Exhibits 1004, 1005 and 1007) with the IPR petition. In its Preliminary Response to the petition, Patent owner Clearlamp objected as not being authenticated prior art and inadmissible hearsay.
The PTAB rules on whether the Exhibits are admissible.
With few exceptions, the Federal Rules of Evidence apply to inter partes proceedings. 37 CFR § 42.62.
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. This process allows the party relying on the evidence to which an objection is timely served, the opportunity to correct, by serving supplemental evidence within so many days of the service of the objection. See, 37 CFR 42.64(b)(1) and (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.
Clearlamp has not followed the proper procedures for objecting to and/or excluding evidence, and should instead file a motion to exclude under 37 C.F.R. § 42.64(c). Such motions to exclude are filed much later during a trial, if trial is instituted. If a trial is instituted, Clearlamp will have full opportunity to object, serve, reconsider any supplemental evidence and finally file a motion to exclude evidence.
Thus, Clearlamp’s “motion to exclude” is DISMISSED without prejudice for renewing under the proper procedures and circumstances.
In responding to prior art as being hearsay and/or not being authenticated, the Patent Owner must file a motion to exclude during the trial (if instituted).
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