A recent PTAB decision highlights the difficulty of persuading
the Board to allow live testimony from an expert during post-grant
proceedings. In IPR2017-00433, the PTAB denied patent owner
Polaris Industries Inc.'s motion for the live testimony of an
expert, even as it acknowledged that his credibility was at
issue.
In light of petitioner Arctic Cat, Inc.'s assertion that the
expert, Dr. Bower, had given inconsistent testimony, Polaris moved
for admission of his live testimony at oral argument pursuant to 37
C.F.R. § 42.53(a). Polaris hoped that his live testimony would
assist the Board in favorably assessing his credibility. But the
Board reiterated that in post-grant proceedings, presentation of
live testimony is the exception, not the rule, in light of the
Board's aim to reach a quick and inexpensive resolution. The
Board held that Dr. Bower's credibility, though relevant, could
be adequately assessed in light of the paper evidence and
counsel's oral argument.
