Third Party Statements Quoted on Website as Party Admissions

In order to prove that the defendant’s product contained ingredients patented by the plaintiff, the plaintiff in Mannatech Inc. v. Glycobiotics Int’l, Inc., 2007 U.S. Dist. LEXIS 91946 (N.D. Tex. Dec. 14, 2007), offered customer testimonials contained on the defendant’s website. Without deciding the issue, the Court indicated that the testimonials could be admissible under Rule 801(d)(2) — presumably 801(d)(2)(A), (B) or (C) — citing PharmaStem Therapeutics, Inc. v. ViaCell, Inc., 491 F.3d 1342, 1351 (Fed. Cir. 2007), for the proposition that: “[T]here is no prohibition against using the admissions of a party, whether in the form of marketing materials or otherwise, as evidence in an infringement action....” Just as the mailing of analyst reports in a securities action is an adoptive admission of the content of the reports by the mailer (absent a disclaimer of some sort), there is no reason by the same analysis would not apply to statements contained on a website (absent some sort of disclaimer, subject to proof that the statements were made by a hacker or were otherwise unauthorized).

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