Takeaway: Questioning a witness about an exhibit to attempt to question the witness’s credibility without any basis for such questioning is akin to a “fishing expedition” and may be prohibited by the Board.

In its Order, the Board denied Patent Owner’s request to retake the deposition of Petitioner’s witness.  During the deposition of Petitioner’s witness a dispute arose concerning questioning the witness with respect to an exhibit, which was a marked-up copy of a manual that is not asserted as prior art in this proceeding.  Patent Owner sought to rely on the exhibit to question the witness’s credibility by ascertaining whether the questioning regarding the exhibit would lead to inconsistencies with respect to the witness’s testimony.  However, Patent Owner could not provide the Board with a sufficient basis for questioning the witness’s credibility in the first place or for questioning the witness at all regarding the exhibit.  The Board found that this questioning was akin to a “fishing expedition” and in conflict with 37 C.F.R. § 42.1(b), which requires the Board to resolve the proceeding in a just, speedy, and inexpensive manner.  Therefore, the Board determined that there was not sufficient reason to take the deposition of the witness again.

Ford Motor Co. v. Paice LLC & The Abell Foundation, Inc., IPR2014-00571
Paper 36: Order on Conduct of the Proceeding
Dated: May 18, 2015
Patent 7,104,347 B2
Before: Sally C. Medley, Kalyan K. Desphande, and Carl M. DeFranco
Written by; Medley