Husch Blackwell Partner Edward Manzo, of the firm’s Technology, Manufacturing and Transportation group, recently obtained one of the first approved subpoenas by the Patent Trial and Appeal Board to take third-party testimony in a patent trial (Luv N’ Care Ltd. V Munchkin, Inc.).
“It’s very rare for the PTAB to allow any third-party discovery. By statute, the Board has to deliver its Final Decision within one year, and it reserves the last three months for writing its opinion, leaving only nine months from institution to final oral argument. This is a very fast track administrative trial of patent validity,” Manzo said. “Because of this mandated speed, there’s virtually no discovery, no interrogatories, no requests to produce, etc. You get to take the deposition of your opponent’s testifying expert, and that’s about it. Otherwise, you couldn’t finish in the required one year. In this particular case, the Board allowed us to take a very focused deposition of a third party.”