Precedential Opinion Provides Factors For Deciding Whether To Allow Live Testimony

Generally, the PTAB does not allow live testimony at oral argument, but recently it designated one of its 2014 decisions as precedential to give guidance as to when the Board will allow live testimony at oral argument. K-40 Electronics, LLC v. Escort, Inc., Case IPR2013-00203 (PTAB May 21, 2014) (Paper 34) (made precedential March 18, 2019).

In this case, the Patent Owner moved to present live testimony from the sole inventor of the challenged patent in order to antedate the only two references relied upon by Petitioner in its challenge to patentability. The Petitioner objected, arguing that granting the motion would create a "de facto" rule permitting live testimony in all antedating disputes. (Id. at 3.) The Board disagreed, asserting it saw "no possibility that a 'per se' rule will result from granting the motion, or that as a result, granting requests for live testimony will become the norm rather than the exception." (Id.) Years later, the Board's prediction has