705 Stipulated Evidence and Accelerated Case Resolution (ACR)
Subject to the approval of the Board, parties may enter into a wide variety of stipulations concerning the admission of specified matter into evidence. The parties may even stipulate to the entire trial record. [ Note 1.] The use of stipulated evidence normally results in savings of time and expense for all concerned. Notwithstanding such a stipulation, a party may reserve the right to object to stipulated evidence on the grounds of competency, relevance, and materiality. [ Note 2.] However, if a party has not reserved the right to object, the party may not later raise objections to that evidence once it has stipulated to the admissibility of that evidence. [ Note 3.]
For example, parties may stipulate that a party may rely on specified responses to requests for discovery, or on other specified documents or exhibits; or that the testimony of a witness may be submitted in the form of an affidavit by the witness; or what a particular witness would testify to if called; or to the facts in the case of any party; or that a discovery deposition may be used as testimony; or that evidence from another proceeding may be used as evidence in the proceeding in which the stipulation is filed. [ Note 4.] See TBMP § 704.07> – TBMP § 704.11 for a discussion of various types of evidence, and TBMP § 703.01(b) regarding the testimony of witnesses.
In certain cases where the parties have entered into certain stipulations, the Board may allow the parties to participate in Accelerated Case Resolution (ACR). See TBMP § 528.05(a)(2), TBMP § 702.04, and TBMP § 705. Generally, parties will stipulate to ACR during the pleading or discovery phase of a Board inter partes proceeding to obtain a pretrial final disposition on the merits in lieu of summary judgment or to have an abbreviated trial on the merits. However, parties may stipulate to ACR-type efficiencies at any stage of a proceeding in order to expedite the remainder of the trial schedule. Parties seeking to avail themselves of such efficiencies may stipulate to, for example, abbreviating the length of the testimony period; limiting the subject matter for testimony; agreeing to limit the number of witnesses; or agreeing to streamline the method of introduction of evidence, for example, by stipulating to facts and introduction of evidence by affidavit or declaration. [ Note 5.] See also TBMP § 528.05(a)(2), TBMP § 702.04, and TBMP § 705 for further information about ACR.
NOTES:
1. Target Brands Inc. v. Hughes, 85 USPQ2d 1676, 1678 (TTAB 2007) (parties stipulated to the entire record in the case including business records, public records, government documents, marketing materials, materials obtained from the Internet, and 13 paragraphs of facts involving such issues as applicant's dates of first use and the extent and manner in which a designation is used and advertised, the channels of trade for such use, and recognition by third parties of such use; and the dates, nature and extent of descriptive uses of designation by opposer's parent company).
2. See UMG Recordings Inc. v. Mattel, Inc., 100 USPQ2d 1868, 1875 (TTAB 2011) (stipulated evidence subject to objection); Blackhorse v. Pro-Football Inc., 98 USQP2d 1633, 1635 (TTAB 2011) (parties stipulated that any documents could be submitted by notice of reliance without the other parties waiving its right to make substantive objections); Target Brands Inc. v. Hughes, 85 USPQ2d 1676, 1678 (TTAB 2007).
3. See Brooks v. Creative Arts By Calloway LLC, 93 USPQ2d 1823, 1827 (TTAB 2009) (by stipulating affidavit and exhibits thereto into evidence, applicant waived its right to object to the admissibility of exhibits attached to affidavit), aff’d on other grounds sub nom, Creative Arts by Calloway, LLC v. Brooks, Civ. No. 09-cv-10488 (CS) (S.D.N.Y. Dec. 27, 2012), dismissed, No. 13-147 (unpublished) (2d Cir. March 7, 2013). Cf. UMG Recordings Inc. v. Mattel Inc., 100 USPQ2d 1868, 1875 (TTAB 2011) (counterproductive for applicant to object to the submission of evidence to which it already provided a stipulation for introduction).
4. See 37 CFR § 2.123(b). See, e.g., Miller v. Miller, 105 USPQ2d 1615, 1617 n.6 (TTAB 2013) (parties stipulated to testimony by affidavit and provided a stipulation of undisputed facts); L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1435 n.2 (TTAB 2012) (parties stipulated to testimony by declaration); UMG Recordings Inc. v. Mattel Inc., 100 USPQ2d 1868, 1873 (TTAB 2011) (parties stipulated to submission of testimony via declaration, submission by notice of reliance of evidence from another case, and submission of information and documents provided by either party during discovery); Blackhorse v. Pro-Football Inc., 98 USQP2d 1633, 1635 (TTAB 2011) (with specified exceptions, parties stipulated that all evidence submitted in a previous case by notice of reliance shall be admissible in instant proceeding by a notice of reliance); Hunt Control Systems Inc. v. Koninklijke Philips Electronics N.V., 98 USPQ2d 1558, 1563 (TTAB 2011) (parties stipulated to authenticity of produced documents and to the introduction of testimony in affidavit or declaration form, with certain guidelines); Kistner Concrete Products Inc. v. Contech Arch Technologies Inc., 97 USPQ2d 1912, 1915 (TTAB 2011) (parties stipulated to authenticity of produced documents).
5. See Chanel Inc. v. Makarczyk, 106 USPQ2d 1774, 1775 (TTAB 2013) (parties’ ACR agreement included stipulation of undisputed facts); Edom Laboratories Inc. v. Lichter, 102 USPQ2d 1546, 1547 (TTAB 2012) (parties filed a joint stipulation of undisputed facts); Brooks v. Creative Arts by Calloway, LLC, 93 USPQ2d 1823, 1824 (TTAB 2009) (parties stipulated to 14 paragraphs of facts, submission of testimony of certain witnesses in declaration form, and that sole issue to be decided at final hearing was priority), aff’d on other grounds sub nom, Creative Arts by Calloway, LLC v. Brooks, Civ. No. 09-cv-10488 (CS) (S.D.N.Y. Dec. 27, 2012), dismissed, No. 13-147 (unpublished) (2d Cir. March 7, 2013); Eveready Battery Co. v. Green Planet, Inc., 91 USPQ2d 1511, 1513 (TTAB 2009) (parties stipulated that evidence submitted in connection with summary judgment motion be deemed of record for trial pursuant to Accelerated Case Resolution (ACR)); Target Brands, Inc. v. Hughes, 85 USPQ2d 1676 (TTAB 2007) (parties stipulated to 13 paragraphs of facts); ., 89 USPQ2d 1262, 1265 n.8 (TTAB 2008) (although documents produced in response to document production requests cannot normally be made of record by notice of reliance, the parties stipulated that documents exchanged during discovery are authentic and could be made of record by either party); Micro Motion Inc. v. Danfoss A/S, 49 USPQ2d 1628, 1629 n.2 (TTAB 1998) (parties stipulated that evidence submitted in connection with summary judgment motion be deemed of record for trial). Cf. UMG Recordings Inc. v. Mattel Inc., 100 USPQ2d 1868, 1873 (TTAB 2011) (efficiencies realized by stipulations defeated by submission of excessive records).