Motion To Exclude Improper Vehicle For Addressing Non-Responsive Evidence

In Apple, Inc. v. Parus Holdings, Inc. (IPR2020-00686), the PTAB denied the Patent Owner's motion to exclude portions of the Petitioner's supplemental expert declaration. Here the Patent Owner sought to exclude a number of paragraphs of the supplemental declaration because the testimony: 1) did not respond to arguments raised in the Patent Owner Response; 2) was an unauthorized late submission; and 3) was improperly incorporated by reference into the reply. The PTAB agreed with the Petitioner that Patent Owner's motion to exclude was improper and that Patent Owner should have filed a motion to strike instead.

In denying the motion, the PTAB made clear that motions to exclude should be used when a party is raising arguments about the admissibility of any evidence under the Federal Rules of Evidence. In its decision, the PTAB pointed to 37 C.F.R. § 42.64 and the Trial Practice Guide which states that "[a] motion to exclude must explain why the evidence is not