PTAB Reinforces Uneven Evidentiary Playing Field In IPRs

The U.S. Patent and Trademark Office's Patent Trial and Appeal Board (PTAB) recently grappled with the admission into evidence of expert deposition testimony that was presumably harmful to the petitioner in an inter partes review (IPR), and barred the testimony from coming into evidence.  In  Axonics Modulation Technologies, Inc. v. Medtronic, Inc., Cases IPR2020-00678, IPR2020-00680, IPR2020-00712, Paper 22 (April 9, 2021), the petitioner elected to depose patent owner's expert, but then declined to submit the transcript as an exhibit to the petitioner reply.  The patent owner then attempted to submit the transcript as an exhibit to the sur-reply, but the PTAB refused to receive deposition testimony.  This case demonstrates the uneven evidentiary playing field for patent owners and petitioners, as the rules would apparently allow the reversed situation to occur.  Specifically, while patent owners are barred from submitting new evidence in a sur-reply, petitioners