Takeaway: Supplemental evidence refers to evidence that is submitted in response to an evidentiary objection and offered solely to support the admissibility of the originally-filed evidence. Supplemental information is evidence submitted outside of the authorized papers that a party intends to rely on to support its argument on the merits.

In its Order, the Board denied authorization for Petitioner to file a motion to submit supplemental information. Petitioner sought to submit supplemental information related to certain prior art references. Patent owner objected to the references as lacking authentication and containing hearsay. Petitioner sought to “submit additional evidence that would remove any alleged evidentiary defect regarding the prior art status of the references.”

The Board reiterated the difference between supplemental evidence, which is served in response to an evidentiary objection and offered solely to support the admissibility of the originally-filed evidence, and supplemental information, which is evidence a party intends to rely on to support an argument on the merits. The Board found that Petitioner’s evidence is actually supplemental evidence, not supplemental information, because Petitioner is attempting to cure the evidentiary objections. Therefore, the Board denied Petitioner’s request to file a motion for supplemental information.

ServiceNow, Inc. v. BMC Softward, Inc., IPR2015-01176; IPR2015-01211
Paper 15: Order on Conduct of the Proceeding
Dated: December 29, 2015
Patents: 5,978,594; 7,617,073 B2
Before: Justin T. Arbes, Brian P. Murphy, and John A. Hudalla
Written by: Hudalla