To Exclude or Not to Exclude?

There are several reasons why the Board rarely grants motions to exclude evidence:

  1. Weight, not admissibility. The opponent’s objections to the evidence usually go more to the weight to be accorded the evidence (i.e., how much it contributes to or detracts from a preponderance), not admissibility (i.e., whether a provision of the Federal Rules of Evidence bars its consideration).
  2. Expert judges. The fact finders—administrative patent judges— are technically proficient legal professionals. They are fully capable of sorting relevant evidence from irrelevant evidence and have no lay jury to shield from prejudice or confusion. They generally treat the evidence for what it’s worth.
  3. An easier way. If the Board is going to decide the overall case against the moving party, it usually can find a way to do so without relying upon the objected-to evidence.
  4. Heavy burden. The remedy—exclusion— is harsh and requires a showing by the moving party of entitlement to it.

For these reasons, most APJ’s are predisposed to dismiss or deny motions to exclude. They would rather dodge the contested evidence than engage in the delicate fact-intensive inquiry required to decide a motion to exclude. Plus cross-motions to exclude can add to a case seventy pages of briefing that the APJ’s probably would prefer not to read. Only in the rare circumstance that material (i.e., dispositive) evidence is inadmissible under the Federal Rules of Evidence should a motion to exclude be entertained seriously.