Takeaway: The moving party seeking to submit supplemental information bears the burden of proof to establish that proposed exhibits are supplemental information, rather than supplemental evidence.

In its Decision, the Board granted Petitioner’s Motion to Submit Supplemental Information. Petitioner filed a Motion to Submit Supplemental Information regarding three exhibits. Patent Owner asserted that Petitioner, as the moving party seeking to submit supplemental information, bears the burden of proof to establish that proposed Exhibits 1016-1018 are supplemental information, rather than supplemental evidence.

The Board noted that supplemental evidence is offered solely to support admissibility of the originally filed evidence and to defeat a motion to exclude that evidence, and not to support any argument on the merits. Supplemental information, in contrast, is evidence a party intends to support an argument on the merits.

Exhibits 1016-1018, are offered as further supporting Petitioner’s contention that asserted references are prior art publications. The Board concluded Exhibit 1016 is evidence Petitioner intends to support an argument on the merits and is thus properly submitted as supplemental information. The Board concluded that Petitioner had established that all of the supplemental information should be filed and considered as part of the trial in this proceeding.

CRESTRON ELECTRONICS, INC. v. INTUITIVE BUILDING CONTROLS, INC., IPR2015-01379
Papers 27: Motion to Submit Supplemental Information
Dated: February 2, 2016
Patents: 5,945,993
Before: Ken B. Barrett, Michael W. Kim, and Daniel N. Fishman
Written by: Fishman