411.05 Sanctions Related to Disclosures and Discovery
In inter partes proceedings before the Board, a variety of sanctions may be imposed, in appropriate cases, for failure to provide disclosures or discovery pursuant to 37 CFR § 2.120(g). [ Note 1.] The Board also may impose sanctions against the non-cooperating party for failure to participate in the discovery conference. [ Note 2.] See TBMP § 408.01(a).The Board’s authority to enter sanctions for conduct or misconduct related to disclosures or discovery is rooted in Fed. R. Civ. P. 37, most portions of which are made applicable to Board proceedings by 37 CFR § 2.116 (certain portions of Fed. R. Civ. P.37 are, on their face, irrelevant to Board proceedings). The range of sanctions listed in Fed. R. Civ. P. 37(b)(2), and which may be entered by the Board include, inter alia, striking all or part of the pleadings of the disobedient party; refusing to allow the disobedient party to support or oppose designated claims or defenses; drawing adverse inferences against uncooperative party; prohibiting the disobedient party from introducing designated matters in evidence; and entering judgment against the disobedient party. However, the Board will not hold any person in contempt, or award any expenses, including attorneys’ fees, to any party. [ Note 3.]
For further information concerning discovery sanctions and when they are available, see TBMP § 527.01.
For information regarding attorneys’ fees in Board proceedings, see TBMP § 502.05.
NOTES:
1. See, e.g., Amazon Technologies, Inc. v. Wax, 95 USPQ2d 1865, 1869 (TTAB 2010) (Board imposed sanctions pursuant to 37 CFR § 2.120(g)(1)); opposer ordered to serve index of produced documents, supplemental answers to certain interrogatories; discovery reopened for applicant only).
2. Promgirl, Inc., v. JPC Co.,94 USPQ2d 1759, 1762 (TTAB 2009); Guthy-Renker Corp. v. Michael Boyd, 88 USPQ2d 1701, 1704 (TTAB 2008).
3. 37 CFR § 2.120(g)(1) and 37 CFR § 2.120(g)(2); 37 CFR § 2.127(f).