"Voluntary Interrogatory Responses" Excluded As Inadmissible Hearsay

While creativity has its place in advocacy, it can be taken too far. The Petitioner learned this lesson the hard way in Unified Patents Inc. v. American Patents LLC, IPR2019-00482, Paper 132 (P.T.A.B. Aug. 3, 2022). In this IPR, the Petitioner submitted its Exhibit 1008, entitled "Petitioner's Voluntary Interrogatory Responses." This unconventional exhibit consisted of five interrogatories that Petitioner drafted along with Petitioner's own responses to those interrogatories relevant to the preparation of the petition by Unified Patents. Id. at 53. Before institution, Patent Owner argued that this self-serving exhibit was improper because "it is black-letter law that a party cannot use its responses to another party's interrogatories as evidence," and, here, Petitioner had drafted both the interrogatories and the responses. The PTAB initially disagreed with Patent Owner in the institution decision, treating Exhibit 1008 as a declaration. Id. at 54.