Takeaway: A party may use exhibits on re-direct that were not introduced in cross-examination as long as the exhibits are related to topics or exhibits that were introduced in cross-examination.

In its Order, the Board found that two exhibits, although not used on cross-examination, were relevant for inquiry during re-direct examination. During the deposition of Patent Owner’s witness, counsel for Petitioner questioned the witness about Exhibits 2001 and 2002 in IPR2014-00110 and Exhibits 2101 and 2102 in IPR2014-00111.  On re-direct, Patent Owner questioned the witness about Exhibit 2003 in IPR2014-00110 and Exhibit 2103 in IPR2014-00111.  Petitioner objected to the use of those exhibits as beyond the scope of the cross-examination and as lacking authentication.

The Board explained that all exhibits have been identified in one of the proceedings and have, therefore, been proffered as evidence. This does not establish admissibility or probative value of the exhibits, but does establish that the documents are relevant for inquiry during a deposition.  The cross-examination exhibits were hand-drawn sketches asserted to be by the witness and related to the witness’s development of the invention claimed in the ’228 Patent.  Likewise, the exhibits used during re-direct were hand-drawn sketches asserted to be by the witness and related to the witness’s development of the invention claimed in the ’228 Patent.  Therefore, the Board found that they were properly within the scope of inquiry for re-direct examination.  Any other objections to the exhibits made on the record will be preserved for later consideration, if necessary.

Medtronic, Inc., Medtronic Vascular, Inc., and Medtronic Corevalve, LLC v. Troy R. Norred, M.D., IPR2014-00110; IPR2014-00111
Paper 24: Order on Conduct of the Proceeding
Dated: October 9, 2014
Patent: 6,482,228 B1
Before: Sheridan K. Snedden, Barry L. Grossman, and Mitchell G. Weatherly
Written by: Grossman