704.12(c) Opportunity to be Heard
A party to a proceeding before the Board is entitled, on timely request, "to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard." [ Note 1.] This does not mean, however, that when judicial notice is taken without prior notification, a party is automatically entitled to a hearing on request, even if it makes no offer to show that the taking of judicial notice was improper. [ Note 2.]
NOTES:
1. Fed. R. Evid. 201(e). See Litton Business Systems, Inc. v. J. G. Furniture Co., 190 USPQ 431, 433-34 (TTAB 1976).
2. See In re Sarkli, Ltd., 721 F.2d 353, 220 USPQ 111, 113 n.6 (Fed. Cir. 1983). See also Tuxedo Monopoly, Inc. v. General Mills Fun Group, Inc, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981) (party can waive right to contest judicial notice if it does not request to be heard at the time), aff’g 204 USPQ 396 (TTAB 1979).