In Ariosa Diagnostics v. Isis Innovation Ltd., IPR2012-00022, Paper 55 (Aug. 7, 2013), the Board announced additional requirements for a foreign language deposition. Specifically, “[r]ule 42.53 governs the taking of testimony, including cross-examination testimony. In addition to adhering to the requirements of that rule, the following guidelines are to be used when conducting a deposition in a foreign language. In the guidelines below, “party” refers to the party proffering the witness, and “opponent” refers to the party cross-examining the witness.

  1. The party proffering the witness is responsible for providing a “first interpreter” who can interpret using a consecutive mode of interpretation.
  2. At least five (5) business days before the cross-examination deposition, the party shall provide to the opponent the name, business address, business telephone number, e-mail address, and resume of the first interpreter.
  3. The opponent may engage the services at the counsel table of a “second interpreter.”
  4. At least five (5) business days before the cross-examination deposition, the opponent shall provide to the party the name, business address, business telephone number, e-mail address, and resume of the second interpreter.
  5. The consecutive mode of interpretation shall be used.
  6. If the second interpreter has a disagreement with the first interpreter regarding the interpretation of the question and/or the answer, the second interpreter should inform counsel by note. If counsel desires to raise the disagreement on the record, the second interpreter, using the consecutive mode, will be allowed to interpret the question for the witness, as well as the witness’ answer to the second interpreter’s interpretation of the question.
  7. If there is a disagreement as to interpretation, and the first and second interpreter cannot work out a mutually agreeable interpretation, an objection should be made on the record, and the first and second interpreter should specify on the record what they believe to be the correct interpretation.
  8. In such an event, the Board will determine which interpretation, if any, is to be accorded more weight.
  9. Collateral attacks with respect to the qualifications of any interpreter, or the manner in which any question or answer was interpreted, shall not be allowed after the conclusion of the deposition.
  10. Copies of any documents which an interpreter will be required to “sight translate” at the deposition shall be provided to the interpreter no later than three days before the deposition is to take place. Failure to timely provide the documents may result in their exclusion from evidence. Unless agreed to by both parties, the interpreter shall not reveal to opposing counsel the nature of any document so provided.
  11. If, at any time during the deposition, the interpreter is unable to interpret or translate a word, expression, or special term, the interpreter shall, on the record, advise the parties of the issue.
  12. An individual may not serve simultaneously as both an attorney for a party and as an interpreter.”