In a final written decision, a PTAB panel has denied a patent owner’s motion to exclude the expert testimony of the petitioner’s declarant. In its motion, the patent owner argued that the testimony should be excluded as unreliable on two grounds, namely, because the expert failed to review data underlying his opinions, and because he failed to apply the correct legal standard for obviousness. According to the Board, whether a witness’ testimony fails to include underlying facts or data on which an opinion is based goes to the weight accorded to the testimony, and not to its admissibility. The Board further determined that the patent owner’s arguments concerning the legal standard for obviousness were not persuasive. Specifically, the patent owner argued that the petitioner’s expert gave no consideration to the relevant time period when addressing who a person of skill in the art is for obviousness purposes. On this point, the Board concluded that the thoroughness of the petitioner’s expert testimony outweighed the concern expressed by the patent owner. The Board, therefore, denied the patent owner’s motion to exclude evidence on all grounds.  

Corning Inc. v. DSM IP Assets B.V., IPR2013-00048 (PTAB May 9, 2014) [McKelvey, Obermann, Bisk, Kamholz (opinion), Yang]