Takeaway: The Board is unlikely to grant a request for live testimony at oral hearing where live direct and cross-examination would not provide help to the Board in determining the appropriate weight to give testimonial evidence.

In its Order, the Board granted the parties’ requests for oral argument in the three related proceedings. The Board also denied Patent Owner’s request to offer live testimony from Mr. Robin Walker, its former Vice President of Sales and Marketing Director, because the Board was not persuaded that the testimony “would further the efficient administration of these proceedings or is necessary in the interest of justice” under 37 C.F.R. § 42.5.

Patent Owner alleged that Mr. Walker’s credibility was attacked by Petitioner and “Mr. Walker’s credibility and testimony are therefore central to this Board’s secondary considerations determination.” Petitioner opposed Patent Owner’s request.

The Board noted that Patent Owner had not cited specific credibility arguments by Petitioner and assumed that Patent Owner was referring to Petitioner’s Reply, evidentiary objections, and Motion to Exclude in attacking Mr. Walker’s credibility. In particular, “[p]ointing to a lack of nexus to show objective indicia of secondary considerations, Petitioner’s Reply asserts that Mr. Walker’s testimony fails to show, on a limitation by limitation basis, that the Q-marine product embodies the claims at issue.” Petitioner also objected to Patent Owner’s evidence based on evidentiary rules.

As the Board found, Petitioner made no “specific attack as to Mr. Walker’s credibility as a witness.” The evidentiary objections would not prejudice the Board’s “ability to ascertain the appropriate weight to give his sworn testimony.” Although Mr. Walker’s potentially “uncorroborated and self-serving” testimony could impact his credibility, the Board found that “assessing Mr. Walker’s demeanor during live direct and cross-examination cannot change the facts of his employment and therefore would provide little, if any, help to the Board in determining the appropriate weight to give his testimonial evidence as to secondary considerations.” Therefore, the Board denied Patent Owner’s request to offer live testimony.

Petroleum Geo-Services Inc. v. WesternGeco LLC, IPR2014-00687, IPR2014-00688, IPR2014-00689
Paper 97 (IPR2014-00687); Paper 98 (IPR2014-00688, 00689): Order on Request for Oral Argument
Dated: July 16, 2015
Patents: 7,162,967; 7,080,607; 7,293,520
Before: Bryan F. Moore, Scott A. Daniels, and Beverly M. Bunting
Written by: Daniels