Organik Kimya AS v. Rohm and Haas Co.

In an order regarding allowable communications between counsel and witness, the Patent Trial and Appeal Board (PTAB) held that counsel may confer with a witness between the end of cross-examination and the beginning of re-cross, but not during cross-examination or re cross.  Organik Kimya AS v. Rohm and Haas Co., IPR No. IPR2014-00185 (PTAB, Aug. 21, 2014) (Green, APJ).

The PTAB explained that, during cross-examination and re-cross, counsel is generally prohibited from conferring with the witness regarding certain topics, such as the substance of the witness’s testimony, or how the witness should answer any questions.  This prohibition ends once cross-examination concludes and begins again when re-cross commences.

The PTAB also considered whether the witness could be re-crossed on the substance of such discussions with counsel.  The PTAB noted that the best practice here is for the parties to confer and agree to ground rules for such lines of questioning.