Spotlight On Upcoming Oral Arguments – October 2019

Evolved Wireless LLC v. ZTE (USA) Inc.., No. 18-2008, Dallas, Texas

The Court has been asked to consider whether the PTAB has the discretion to properly disregard evidence that is deficient in certain technical requirements.  Evolved is the owner of U.S. Patent No. 7,881,236 (“the '236 patent”), which discloses an invention that improves upon prior art mobile telephone systems.  In an IPR challenging the validity of the '236 patent, Evolved submitted an expert declaration to support the validity of its patent.  The Board declined to give any weight to Evolved's expert declaration because it failed to include language that the statements were submitted “under the penalty of perjury.” The Board reasoned that to give the declaration any weight would “thwart the purpose” of the rules regarding affidavit or declaration evidence, and ultimately found the '236 patent invalid as obvious.