Nagaraj v. Rickerby

The opinion in support of the decision being
entered today is not binding precedent of the Board.
Paper 51
UNITED STATES PATENT AND TRADEMARK OFFICE
_______________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_______________
BANGALORE A. NAGARAJ, WILLIAM B. CONNOR,
RICHARD W. JENDRIX, DAVID J. WORTMAN
and LARRY W. PLEMMONS
Junior Party,
(Patent 5,427,866),
v.
DAVID S. RICKERBY, DANIEL K. WHITE
and STANLEY R. BELL
Senior Party,
(Application 08/608,502).
_______________
Patent Interference No. 104,817
_______________
DECISION ON RICKERBY MISCELLANEOUS MOTION 3
(Motion In Limine Requesting That Nagaraj Exhibit 2054 Be Stricken)
During a conference call initiated by the parties on November 22, 2002, Rickerby requested
and was authorized to file a miscellaneous motion in limine to have Nagaraj Exhibit 2054 stricken.
As basis for filing the motion, Rickerby relies on § 51 of the standing order (Paper 2) and Federal
Rule of Evidence 802. Paper 49, p. 1. No opposition or reply has been authorized. Upon review,
permission to file a motion to strike "in limine" at this stage of the proceeding was inappropriate.
The motion is therefore dismissed.

1 This section provide s:
§ 51. Motion for ruling on the admissibility of evidence
At any app ropriate time , a party may file a R ule 635 m iscellaneous motion (in
limine) for a ruling on the admissibility of evidence.
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ANALYSIS
Section 51 of the Standing Order (Paper 2) authorizes the filing of a miscellaneous motion
in limine for a ruling on the admissibility of evidence.1 Generally, an in limine motion is a motion
filed to resolve certain matters, including evidentiary matters, prior to trial. In the case of evidentiary
matters, a party may seek an advance ruling on the admissibility of evidence to be proffered at trial.
An in limine motion may seek to bar the presentation at trial of certain evidence on any ground based
upon the Federal Rules of Evidence. In limine motions, however, are not ordinarily made during
trial. Rather, the evidence submitted at trial may be objected to by the opponent and is ruled upon
by the trial judge.
The conduct of an interference is similar to a trial. Under current interference procedures,
there are actually two separate "trials." The first is the preliminary motions phase. The second is
the priority phase. Only the preliminary motions phase is of concern here.
During the preliminary motions phase the parties may present motions with supporting
witness testimony and other evidence. The Federal Rules of Evidence govern the admissibility of
evidence. Witness testimony is presented in the form of affidavits or declarations. Objections to the
admissibility of any evidence under the Federal Rules of Evidence may be made with the proponent
of the evidence having an opportunity to correct the purported defect. Witnesses are subject to cross-
and redirect-examination by deposition. This process may be repeated with oppositions and replies.
Evidentiary matters which are timely raised by objection and not resolved to the satisfaction of the
objecting party may be raised in a motion to suppress. An opposition and reply to the motion to
suppress may also be filed. After presentation of the motions and evidence the parties may present
a closing oral argument to the board. This entire process is a "trial" of the issues conducted primarily
in paper and by deposition rather than live before a judge. The preliminary motions "trial" begins
on the date preliminary motions are filed.
Section 51 of the standing order permits filing motions "in limine" seeking a ruling on
evidence. What is contemplated by this section is a pretrial motion for a ruling on admissibility. In

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the conventional trial setting it is hoped that raising the prospective admissibility issue prior to trial
will avoid having to consider the issue at trial. In the context of the "preliminary motions trial"
motions in limine serve a similar purpose. A ruling before the preliminary motions trial begins will
conserve resources. An in limine ruling may eliminate the need to submit evidence which may
subsequently be ruled inadmissible and minimizes motions to suppress and the corresponding
oppositions and replies.
Relying on § 51 of the standing order, Rickerby requested permission to file a motion in
limine. However, the request came not during pretrial but well into the preliminary motions phase
of the interference. Thus, § 51 of the standing order is not applicable and granting Rickerby's request
based on that section was inappropriate. Rickerby's motion is actually a premature motion to strike.
Rickerby Miscellaneous Motion 3 is dismissed. The dismissal is without prejudice to Rickerby filing
a timely motion to suppress as scheduled by the order entered May 1, 2002, as subsequently modified
by the parties.
ORDER
For the reasons stated above, it is
ORDERED that Rickerby Miscellaneous Motion 3 be DISMISSED.
Richard E. Schafer
Administrative Patent Judge
Date: 5 December 2002
Arlington, VA
cc(via Fax):
Attorney for NAGARAJ: Attorney for RICKERBY:
Stanislaus Aksman, Esq. William P. Berridge, Esq.
HUNTON & WILLIAMS OLIFF & BERRIDGE, PLC