Rose v. Frazer

Informative decision only: persuasive authority, not binding precedent. In an interference, a motion in limine may be used to seek exclusion of exhibits, and a party's affidavit or declaration served in an earlier, administratively terminated interference is hearsay and is excluded under Fed. R. Evid. 804(b)(1) where the opponent never had an opportunity (as of right) to cross-examine the now-deceased declarant; an expert's reliance on otherwise inadmissible facts or data is governed by Fed. R. Evid. 703 and does not warrant exclusion where experts reasonably rely on that type of data. Admissibility does not decide weight, which the Board reserves for its decision on preliminary motions. No prior precedent directly addressed this issue in the text; the decision cites no earlier Board decision and describes how pre-Trial Section practice differed from Trial Section practice. For the opposing party in an interference, it shows that a motion in limine can remove a declaration whose declarant died before cross-examination, and that the Federal Rules of Evidence supply the standards for hearsay, authentication and expert reliance. For the party that offered the evidence, former-testimony arguments fail if no time for cross-examination was ever set, though authentication by another knowledgeable witness and expert reliance on the underlying item can still save derivative evidence. The Board applied Fed. R. Evid. 801, 804(b)(1), 901 and 703 and rejected Fed. R. Civ. P. 32(a)(3)(A); it cited no Federal Circuit, CCPA or Supreme Court authority. LEGAL TEST OR STANDARD: Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted (Fed. R. Evid. 801(c)). Fed. R. Evid. 804(b)(1) excepts former testimony of an unavailable declarant only if the party against whom it is offered had an opportunity and similar motive to develop the testimony by direct, cross or redirect examination. Authentication requires evidence sufficient to support a finding that the matter is what its proponent claims (Fed. R. Evid. 901(a), 901(b)(1)). Under Fed. R. Evid. 703, an expert's underlying facts or data need not be admissible if of a type reasonably relied upon by experts in the field. TRIGGERING FACTS: Frazer served the Zhou declaration in Interference 103,929 before the Trial Section was created. No cross-examination period was set there, and that interference was terminated without a decision on preliminary motions. Dr. Zhou died, so Rose never had a chance to cross-examine him. Frazer then re-served the declaration in this interference. Separately, the micrograph (Ex 1027) was authenticated by Dr. Sun, a co-author who testified from knowledge and was cross-examined, and the experts Stanley and Jansen relied on the micrograph as a type of data experts reasonably use. KEY QUOTE: "The fact (assumed for the purpose of deciding the motion) that the Stanley and Jansen testimony may be entitled to little, if any, weight is not a basis for excluding that testimony from evidence." (Paper 73, p. 12) PRIOR PRECEDENT AFFECTED: No prior precedential or informative decision is directly affected. PRACTICE TIP: In an interference, move in limine to exclude opposing exhibits and state precisely the evidentiary ground under the Federal Rules of Evidence, and tell the Board how and for what purpose each exhibit will be used. Keep admissibility arguments separate from weight arguments, because weight is decided later and is not a basis for exclusion. Also seek cross-examination of declarants early, since failure to cross-examine waives the right.