Despite similarities in form, a cross-examination in a Patent Trial and Appeal Board (“PTAB”) trial constitutes trial testimony, which is different from a discovery deposition occurring in civil litigation. While most practitioners would readily recognize this distinction in the abstract, it can be easy to fall back into patterns learned in and applicable to pretrial discovery in civil litigation that may not fit for a PTAB cross-examination. The PTAB regulations describe cross-examination as “routine discovery” in the “form of a deposition transcript,” but a civil action discovery deposition and a PTAB trial cross-examination deposition differ in their goals, their applicable rules, and their use in the case, all of which should inform how one approaches the cross-examination process. One of the classic texts on trial advocacy, THE ART OF CROSS-EXAMINATION, was published more than a century ago. Through stories and descriptions, that book has taught generations of lawyers its techniques for approaching cross-examination in a live courtroom setting. In this article, drawing its title from that work, we will review some of the regulations, guidelines, and cases from the Board instructing counsel on how to approach and conduct cross-examination in the PTAB trial.
Philip D. Segrest Jr.,
The Art of Cross-Examination in PTAB Trials,
Chi.-Kent J. Intell. Prop.
Available at: https://scholarship.kentlaw.iit.edu/ckjip/vol21/iss2/1