Takeaway: Witnesses are required to be available for cross-examination in the United States. However, the Board has the discretion to allow a party to substitute witnesses, where travel problems are discovered and brought to the attention of the Board at a time early enough in the trial not to prejudice the other party in meeting deadlines necessitated by the one-year statutory deadline.

In its Order, the Board advised the parties that cross-examination of Patent Owner’s witnesses would take place live before at least one member of the panel. Patent Owner submitted declarations for three witnesses, at least two of which for different reasons may not be able to travel to the United States for cross-examination. Dr. Promtov, a resident of Russia, has not been able to obtain a visa to enter the United States and may not be able to obtain on within a time that would permit cross-examination to take place in a manner that would allow the IPR to complete within the one-year statutory time period. Dr. Moholkar, a resident of India, is the sole individual who can attend to his father’s illness, and he may not be able to travel until the father has sufficiently recuperated. Dr. Kellens, a resident of Belgium, may be able to travel to the United States without substantial difficulty.

The Board has elected to hear cross-examination of the three witnesses live before at least one member of the panel. If any witness is unable to attend the live cross-examination, then Patent Owner can substitute a witness and file a Replacement Opposition and Replacement Declaration(s). Any testimony no longer relied upon in the Replacement Opposition would be expunged from the record.

The Board noted that Patent Owner had chosen these witnesses, but because Patent Owner had brought these concerns to the Board early, it was able to implement an alternative Plan B if any witness was unable to travel to the United States.

Arisdyne Systems, Inc. v. Cavitation Technologies, Inc., IPR2015-00977
Paper 32: Order on Cross Examination
Dated: December 15, 2015
Patent: 8,911,808 B2
Before: Fred E. McKelvey, James T. Moore, and Brian P. Murphy
Written by: McKelvey