707.04 Waiver of Objection
A party may waive an objection to evidence by failing to raise the objection at the appropriate time. [ Note 1.] See TBMP § 707.02 and TBMP § 707.03.
For example, an objection to a notice of reliance on the ground that the notice does not comply with the procedural requirements of the particular rule under which it was submitted generally should be raised promptly. If a party fails to raise an objection of this nature promptly, the objection may be deemed waived, unless the ground for objection is one that could not have been cured even if raised promptly. See TBMP § 707.02(b)(1) and TBMP § 707.02(b)(2).
Similarly, an objection to a testimony deposition on the ground that it does not comply with the applicable procedural rules generally is waived if not raised promptly, unless the ground for objection is one which could not have been cured even if raised promptly. See TBMP § 707.03(b)(1) and TBMP § 707.03(c).
On the other hand, objections to a notice of reliance, or to a testimony deposition, on substantive grounds, such as, that the proffered evidence constitutes hearsay or improper rebuttal, or is incompetent, irrelevant, or immaterial, generally are not waived for failure to raise them promptly, unless the ground for objection is one which could have been cured if raised promptly. [ Note 2.] See TBMP § 707.02(c) and TBMP § 707.03(c).
If testimony is submitted in affidavit form by stipulation of the parties pursuant to 37 CFR § 2.123(b), any objection, which is waived if not made at deposition, must be raised promptly after receipt of the affidavit submission, failing which it is waived. [ Note 3.]
If a party fails to attend a testimony deposition, any objection, which is waived if not made at the deposition, is waived. [ Note 4.]
Additionally, by failing to preserve the objection in its brief on the case, or in an appendix to the brief on the case or in a separate statement of objections filed with the brief on the case, a party may waive an objection that was seasonably raised at trial. [ Note 5.] See TBMP 707.03(c). However, parties are discouraged from filing objections that are not outcome-determinative or that are duplicative of issues previously raised via a motion to strike. [ Note 6.]
NOTES:
1. See 37 CFR § 2.123(e)(3), 37 CFR § 2.123(j), and 37 CFR § 2.123(k); and Fed. R. Civ. P. 32(d)(1), Fed. R. Civ. P. 32(d)(2), Fed. R. Civ. P. 32(d)(3)(A), and Fed. R. Civ. P. 32(d)(3)(B). See, e.g. Coach Services Inc. v. Triumph Learning LLC, 96 USPQ2d 1600, 1603, n.3 (TTAB 2010), aff’d-in-part, rev’d-in-part and remanded on other grounds, 668 F.3d 1356, 101 USPQ2d 1713 (Fed. Cir. 2012).
2. See Hornby v. TJX Companies, 87 USPQ2d 1411, 1417 (TTAB 2008) (objection regarding authentication of testimonial deposition exhibits made in brief but not in testimonial deposition itself overruled – offering party did not have opportunity to provide authentication testimony in testimonial deposition).
3. See Chase Manhattan Bank, N.A. v. Life Care Services Corp., 227 USPQ 389, 391 (TTAB 1985).
4. See Notice of Final Rulemaking, 48 Fed. Reg. 23122, 23132 (May 23, 1983); Wright Line Inc. v. Data Safe Services Corp., 229 USPQ 769, 770 (TTAB 1985); Pass & Seymour, Inc. v. Syrelec, 224 USPQ 845, 847 (TTAB 1984).
5. See also General Mills Inc. v. Fage Dairy Processing Industry SA, 100 USPQ2d 1584, 1592 n.7 (TTAB 2011) (objection to testimony deemed waived because it was not maintained in brief) judgment set aside on other grounds, 110 USPQ2d 1679 (TTAB 2014) (non-precedential); Anthony’s Pizza & Pasta International, Inc. v. Anthony’s Pizza Holding Co., 95 USPQ2d 1271, 1273 n.4 (TTAB 2009) (objection to testimony raised in deposition may be maintained in appendix to brief or by separate statement of objections), aff’d, 415 Fed. Appx. 222 (Fed. Cir. 2010); 7-Eleven, Inc. v. Wechsler, 83 USPQ2d 1715, 1718 n.25 (TTAB 2007) (objection to deposition exhibit waived because not renewed in trial brief); Wet Seal Inc. v. FD Management Inc., 82 USPQ2d 1629, 1632 (TTAB 2007) (objection to testimony waived when not renewed in brief); Kohler Co. v. Baldwin Hardware Corp., 82 USPQ2d 1100, 1104 (TTAB 2007) (objections raised at trial waived when petitioner waited until its reply brief to renew objections); Duramax Marine LLC v. R.W. Fernstrum & Co., 80 USPQ2d 1780, 1785 (TTAB 2006) (objection that witness was not a trademark expert not maintained in brief and thus waived); First Niagara Insurance Brokers Inc. v. First Niagara Financial Group Inc., 77 USPQ2d 1334, 1340 n.14 (TTAB 2005) (objection made in deposition but not renewed in brief deemed waived), rev’d on other grounds, 476 F.3d 867, 81 USPQ2d 1375 (Fed. Cir. 2007); Hard Rock Café International (USA) Inc. v. Elsea, 56 USPQ2d 1504, 1507 n.5 (TTAB 2000) (objection to exhibit raised during deposition but not maintained in brief deemed waived); Reflange Inc. v. R-Con International, 17 USPQ2d 1125, 1126 n.4 (TTAB 1990) (objections to testimony and exhibits made during depositions deemed waived where neither party raised any objection to specific evidence in its brief); United Rum Merchants Ltd. v. Fregal, Inc., 216 USPQ 217, 218 n.4 (TTAB 1982) (party failed to pursue objection to certain insufficiently identified exhibits introduced at trial in its brief); Medtronic, Inc. v. Medical Devices, Inc., 204 USPQ 317, 320 n.1 (TTAB 1979) (applicant's objections to opposer's main testimony and rebuttal testimony on grounds of hearsay and competency deemed waived where applicant did not repeat the objections and in fact attempted to use the rebuttal to support its own case); Volkswagenwerk Aktiengesellschaft v. Clement Wheel Co., 204 USPQ 76, 83 (TTAB 1979) (objections made during depositions but not argued in the briefs were considered to have been dropped); Fischer Gesellschaft m.b.H. v. Molnar & Co., 203 USPQ 861, 866 (TTAB 1979); Copperweld Corp. v. Astralloy-Vulcan Corp., 196 USPQ 585, 587 n.3 (TTAB 1977).
6. Carefirst of Maryland Inc. v. FirstHealth of the Carolinas, Inc., 77 USPQ2d 1492, 1495 (TTAB 2005) ("At the oral hearing, pursuant to the Board's inquiry, counsel indicated that none of the objected-to evidence is outcome determinative. Several of the parties’ objections merely reiterate what was raised in their motions to strike, and, thus, these evidentiary issues have already been handled above in deciding the various motions. … The parties spent an inordinate amount of effort on evidentiary disputes. The gamesmanship during discovery, which then carried over into certain aspects of the trial phase, is breathtaking, and both sides are guilty of participating in this wasteful behavior.").