Addressing the standard for admitting evidence in inter partes review (IPR) proceedings, the U.S. Patent and Trademark Office’s (USPTO) Patent Trial and Appeal Board (PTAB or Board) denied three motions to exclude as part of a final written decision upholding the patentability of challenged claims, finding that the parties’ arguments for exclusion more properly went to weight.   Fujian Newland Computer Co., Ltd., v. Hand Held Prods., Inc., Case No. IPR2013-00595 (PTAB, Feb. 18, 2015) (Boucher, APJ).

Patent owner Hand Held Products is the owner of a patent related to bar-code scanning.  Fujian Newland Computer (Fujian) filed a petition for IPR and, later, a corrected petition.  Hand Held Products filed a preliminary response, and the Board instituted a trial.  After the patent owner’s response and hearing, the Board entered a final written decision.

At trial, both parties moved to exclude some or all of the opposing expert’s declaration.  Petitioner Fujian alleged that certain testing and results described in patent owner’s expert declaration should be excluded because the testing was not sufficiently explained to permit the Board to meaningfully weigh the evidence.  However, the Board found that the explanation was sufficient for admissibility where the expert both explained how he performed the tests, including a complete copy of his source code, and explained the relevance of the tests.  As the Board explained, Fujian’s arguments went to weight, not admissibly.

Hand Held sought to exclude an expert declaration offered by Fujian on the grounds that it uses an entirely incorrect legal framework and because the expert was not qualified.  In light of Fujian’s arguments that patent owner did not object when the evidence was originally offered, and considering the reduced policy concerns with admitting unreliable expert evidence in a bench trial, the Board again favored admission, again finding that arguments (this time by the patent owner) went to weight, not admissibly.