Talk of laziness, copyright, and hearsay peppered oral arguments last week in Intellectual Ventures I LLC v. Ericsson Inc., No. 2015-1947 (Fed. Cir., filed Aug. 26, 2015). This appeal from an inter partes review (IPR) seeks to overturn the Patent Trial and Appeal Board’s decision canceling Intellectual Ventures’ claimed methods for secure packet switching. The Board primarily relied on a reference by Stadler, which is a document alleged to be published by the Institute of Electrical and Electronics Engineers (IEEE) that bears a copyright notice date of 1998. IEEE publishes some of its documents, and the Board relied on the copyright notice date as the publication date for Stadler.
Hearsay in the Hot Seat
Intellectual Ventures contends the copyright notice is not sufficient to show public accessibility and that the date within the copyright notice constitutes “inadmissible hearsay not within any exception [to the hearsay rule] when used to prove when Stadler was made publicly available.” (Appellant’s Reply Brief at 15.) Ericsson contends that the Board properly relied on the copyright notice date because Stadler fits within the market-report hearsay exception in Federal Rule of Evidence (FRE) 803(17), which applies to “[m]arket quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations.” (Appellee’s Brief at 30-31.) Ericsson also contends that Stadler fits within the “residual exception” of FRE 807, which allows the admission of hearsay if it meets several requirements, including showing that “it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.” (Appellee’s Brief at 34.) Intellectual Ventures argues that these exceptions do not apply because “Stadler (and its copyright) was not a compilation under [the market-report exception of] FRE 803(17),” and “that the requisite levels of probativeness and necessity are not present here” to qualify under the residual exception. (Appellant’s Reply Brief at 16, 19.)
During last week’s oral hearing, the bulk of the panel’s questions, and in particular Judge O’Malley’s, were directed to this hearsay issue.