Takeaway: A motion to exclude is for seeking the exclusion of evidence, not the exclusion of attorney argument.  Also, argument made by counsel at oral hearing does not become evidence simply because it may appear in a transcript of the oral hearing.

In its Order, the Board refused Patent Owner’s request for authorization to file an additional motion to exclude.  Also, the Board ordered that Paper 46 be expunged from the record.

Oral argument was held on October 29, 2014.  In a conference a few days before oral argument, Patent Owner alleged that Petitioner’s proposed demonstratives included “unsupported” argument and requested that the Board prohibit their presentation during Petitioner’s oral argument.  The following day, Patent Owner filed a “Notice of Objection” which appeared in the record as Paper 46.  The Board indicated that “the issue was one concerning the persuasive effect of such argument, and not the impermissible presentation of the argument.”  Therefore, the Board declined to prohibit the presentation of such argument in Petitioner’s oral argument.

After oral argument, another conference call was held during which Patent Owner requested authorization to file a motion to exclude arguments made by Petitioner during the oral hearing which appeared in Petitioner’s demonstratives.  It was the Board’s position that Patent Owner was “simply . . . raising the same issue that already [had] been considered and addressed by the panel.”

The Board went on to note that a motion to exclude is a vehicle to seek the exclusion of evidence, rather than the exclusion of attorney argument.  According to the Board, it understood the nature of Patent Owner’s objections, and would take them into account at the time of rendering its Final Written Decision.

Finally, Petitioner had requested that Paper 46 (Patent Owner’s Notice of Objection) be expunged.  The Board agreed, ordering the Paper 46 be expunged because it was filed without Patent Owner first obtaining authorization from the Board as required by 37 C.F.R. § 42.64(b)(1).

Guangdong Xinbao Electrical Appliances Holdings Co., Ltd. v. Adrian Rivera, IPR2014-00042 
Paper 48: Order on Conduct of Proceeding 
Dated: November 17, 2014 
Patent: 8,291,812 B2 
Before: Francisco C. Prats, Josiah C. Cocks, and Jacqueline Wright Bonilla
Written by: Cocks