Perego v. Drehmel

Informative decision only: persuasive authority, not binding precedent. When a party objects to evidence under the standing order and the opponent responds by serving amended or supplemental exhibits to overcome the objection, the Board will not strike the supplemental exhibit merely because it presents new facts, since presenting new facts to overcome an objection is not per se improper. The objecting party may move to strike at the appropriate time (Time Period 5) on the ground that the supplemental exhibit fails to overcome the original objections, and a supplemental exhibit should carry the same exhibit number as the original, which it replaces. No prior precedent directly addressed this issue in the text; the decision cites no earlier Board decision. For the party objecting to evidence (here Perego), objecting invites supplemental evidence with new facts, and a generic complaint that the exhibit adds "new arguments" will not support striking it. The objector must articulate why the new facts necessitate striking, may cross examine on the amended declaration, and should preserve a motion to strike in Time Period 5 for failure to cure the objection. For the party whose evidence is challenged (here Drehmel), it may cure objections by supplemental evidence containing new facts, provided it does not amend or add arguments to its filed briefs, and should reuse the original exhibit numbers so briefs need not be amended. The decision cites no Federal Circuit, CCPA or Supreme Court authority; it relies on the standing order (SO ¶ 155.1 and 155.1.3). LEGAL TEST OR STANDARD: No multi-factor test. The Board reasoned that evidence should not contain arguments; that presenting new facts to overcome an objection is not per se improper; that a party who objects to evidence invites a proper response with supplemental evidence; and that the objector must articulate why alleged new facts necessitate striking the exhibit. A motion to strike may be brought at Time Period 5 on the basis that the supplemental exhibit fails to overcome the original objections. TRIGGERING FACTS: Perego objected to Drehmel's exhibits under SO ¶ 155.1. Drehmel resubmitted amended exhibits under SO ¶ 155.1.3, including a substitute declaration of Desi Rhoden (Exhibit 1002) supporting its opposition briefs. Perego said it added new arguments and was confusing, but Drehmel gave Perego a comparison, did not seek to amend its oppositions, and Perego had not yet cross examined the declarant. KEY QUOTE: "If a party objects to evidence, then the opponent may properly respond and present supplemental evidence in order to overcome the objection." (Paper 63, p. 3) PRIOR PRECEDENT AFFECTED: No prior precedential or informative decision is directly affected. PRACTICE TIP: Do not move to strike a cured exhibit just because it adds facts; instead identify specifically why the new material is improper, cross examine on the amended declaration, and preserve a Time Period 5 motion arguing the supplement fails to overcome the original objection. When supplementing, reuse the original exhibit number and provide a comparison.