On September 24, 2013, Chief ALJ Charles E. Bullock issued a notice to the parties regarding certain evidentiary issues in Certain Wiper Blades (Inv. No. 337-TA-816).
By way of background, the investigation is based on a complaint filed by Robert Bosch LLC (“Bosch”) alleging violation of Section 337 in the importation and sale of certain “flat” or “beam-type” wiper blade devices that infringe one or more claims of the asserted patents. See our October 27, 2011 post for more details on Bosch’s complaint. As explained in our November 2, 2012 post, the Commission determined to review Order Nos. 51 and 52 and the claim constructions those orders turned upon. Further, the details of the Commission’s subsequent opinion reversing the ALJ’s initial determination can be found in our April 29, 2013 post.
According to the notice, “[i]n order to streamline the evidentiary hearing scheduled for October 1-9, 2013,” the parties were advised of the ALJ’s policies regarding the following:
- Claim charts: Claim charts are treated as demonstratives and do not come in as substantive evidence.
- Expert reports: Expert reports are not admissible as substantive evidence, but may be used for impeachment purposes.
- Discovery responses: A party’s own responses are not admissible as substantive evidence nor can a party use its own discovery responses to rehabilitate one of its own witnesses.
- Declarations: Declarations do not come into evidence, but may be used for impeachment of the declarant.
- Deposition designations: Absent an agreement among the parties, deposition testimony only comes in as evidence if it falls within one of the exceptions set forth in Commission Rule 210.28(h) or is being used for impeachment purposes.
- Ground Rule 10.5.6: The subject matter of the expert witness’s testimony need only be mentioned in either that witness’s expert report or deposition testimony to be deemed sufficient and thus, in compliance with Ground Rule 10.5.6.