Interference No. 103,675
of their argument.
We agree with Chen et al. that Bouchard et al. failed to
follow the proper procedure for preserving their right to move to
suppress CX 85. However, because CX 85 is an alleged notebook page of
Ms. Wei who has never testified in this proceeding, CX 85 has never
been adequately authenticated which is a prerequisite to
admissibility. Accordingly, pursuant to our authority under 37 C.F.R.
§ 1.655(a) we shall not consider CX 85, notwithstanding Bouchard et
al.'s procedural failure to object to CX 85 as hearsay, because it has
not been authenticated. We also note that Chen et al. do not argue
that CX 85 is not hearsay. According to Federal Rule 802 "[h]earsay is
not admissible except as provided by these rules ...." Because 37
C.F.R. § 1.671(b) adopts the Federal Rules of Evidence and because
Chen et al. have not proved that CX 85 is admissible under one of the
hearsay exceptions of the Federal Rules, we are not required to
consider CX 85 both because it has not been authenticated and because
it is impermissible hearsay.
Accordingly, because we have decided to grant Bouchard et
al.'s motion to exclude Chen et al.'s documentary evidence on the
grounds that it is impermissible hearsay, we shall also exclude Dr.
Chen's uncorroborated testimony concerning the excluded documentary
evidence.
69
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