Wojciak v. Nishiyama

Informative decision only: persuasive authority, not binding precedent. When cross-examination testimony in an interference will be taken through an interpreter, the Board will govern the deposition by guidelines under which the party presenting the direct affidavit testimony supplies and pays for a "first interpreter" using the consecutive mode, the interpreter's qualifications are tested by voir dire, the opponent may bring a "second interpreter" at its own expense, and the Board ultimately decides each interpreter's qualifications and what weight, if any, to give the interpretation. Disputes about interpretation must be recorded during the deposition, and collateral attacks through a "third interpreter" after the deposition are not allowed. No prior precedent directly addressed this issue; the order cites only the "just, speedy and inexpensive" philosophy of the rules (37 CFR § 1.601) and no prior Board decision. For the opposing party (the cross-examiner), it provides a defined structure: advance disclosure of the first interpreter's identity and resume five business days before the deposition, ex parte contact with that interpreter beforehand, voir dire, a second interpreter at counsel table, and a procedure to flag disagreements. For the party offering the witness, it imposes the burden of providing and paying for a qualified consecutive-mode interpreter, disclosing credentials, and risking exclusion of sight-translation documents not given to the interpreter three days ahead. The order cites no Federal Circuit, CCPA or Supreme Court authority. LEGAL TEST OR STANDARD: No multi-factor test; the Board set 37 guidelines. Core elements: the party presenting direct affidavit testimony provides and pays for a first interpreter able to use the consecutive mode (guidelines 3 and 4); voir dire on the record before cross-examination, with the interpreter under oath (5 and 6); five business days' advance disclosure of the interpreter's (1) name, (2) business address, (3) business telephone number, (4) business e-mail (if any) and (5) resume (7); the opponent may have a second interpreter at its own expense (9 and 10); and the Board ultimately determines qualification and weight (5, 11 and 23). TRIGGERING FACTS: The Board was advised during a telephone conference call that cross-examination of at least one of Nishiyama's witnesses would take place through an interpreter, English to Japanese and vice-versa. The guidelines were stated to govern further proceedings in this interference, in which Wojciak is the junior party and Nishiyama the senior party. The order itself does not say whether other interferences must follow them. KEY QUOTE: "The board ultimately will determine whether any first interpreter is qualified, and what weight, if any, shall be given to any interpretation by the first interpreter." (Paper 54, p. 3) PRIOR PRECEDENT AFFECTED: No prior precedential or informative decision is directly affected. The order refers only to the "just, speedy and inexpensive" philosophy of the rules (37 CFR § 1.601). PRACTICE TIP: If a witness will be cross-examined through an interpreter, retain a qualified consecutive-mode interpreter early, deliver the interpreter's name, contact details and resume five business days before the deposition, and prepare for voir dire. Make the record of any interpretation problem during the deposition, because post-deposition collateral attacks through a third interpreter are barred, and give the interpreter any documents for sight translation at least three days beforehand.