PTAB: Counsel May Confer with Witness During the Timeframe Between Cross-Examination and Re-Direct

The Board recently provided guidance on deposition practice in AIA trial proceedings. The Trial Practice Guide prohibits counsel offering a witness from conferring with the witness “[o]nce the cross-examination of a witness has commenced, and until cross-examination of the witness has concluded.” 77 Fed. Reg. 48772 (Aug. 14, 2012). The Trial Practice Guide does not specify how the prohibition of conferring with a witness applies in situations where the deposition involves re-cross and re-direct testimony.

The Board recently designated as precedential Focal Therapeutics, Inc. v. SenoRx, Inc., IPR2014-00116, Paper 19 (PTAB July 21, 2014) which addresses this issue.

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