In a recent Boardside Chat, a panel of administrative patent judges provided guidance on authentication issues that arise in proceedings before the PTAB. Due to the frequency of web pages being used in trial proceedings (e.g., as prior art references or evidence demonstrating the state of the art), the panel provided guidance on authenticating a web page. A web page may be authenticated by (a) providing testimony from a person who captured the web page, (b) providing computer forensic expert testimony, (c) indicating distinct characteristics of the web page, or (d) utilizing an internet archive to help demonstrate a clear and reliable process for obtaining the web page.
The panel also provided guidance on a number of hearsay issues encountered at the PTAB. Notably, a U.S. patent application or patent is admissible as evidence only to show what the specification or drawings describe. Thus, in order to rely on any data in the specification or drawings, an affidavit must be filed by an individual with firsthand knowledge of how the data was produced. With respect to the residual hearsay exception, the panel noted the importance of providing reasonable notice to the adverse party of the intent to offer the statement and its particulars.