902.02 Time For Filing Notice Of Appeal, Cross-Appeal
Trademark Act § 21(a)(2), 15 U.S.C. § 1071(a)(2) When an appeal is taken to the United States Court of Appeals for the Federal Circuit, the appellant shall file in the United States Patent and Trademark Office a written notice of appeal directed to the Director, within such time after the date of the decision from which the appeal is taken as the Director prescribes, but in no case less than 60 days after that date.
37 CFR § 2.145(d) Time for appeal or civil action.
- (1) The time for filing the notice of appeal to the U.S. Court of Appeals for the Federal Circuit (paragraph (b) of this section), or for commencing a civil action (paragraph (c) of this section), is two months from the date of the decision of the Trademark Trial and Appeal Board or the Director, as the case may be. If a request for rehearing or reconsideration or modification of the decision is filed within the time specified in §§ 2.127(b), 2.129(c) or 2.144, or within any extension of time granted thereunder, the time for filing an appeal or commencing a civil action shall expire two months after action on the request. In inter partes cases, the time for filing a cross-action or a notice of a cross-appeal expires (i) 14 days after service of the notice of appeal or the summons and complaint; or (ii) two months from the date of the decision of the Trademark Trial and Appeal Board or the Director, whichever is later.
- (2) The times specified in this section in days are calendar days. The times specified herein in months are calendar months except that one day shall be added to any two-month period which includes February 28. If the last day of time specified for an appeal, or commencing a civil action falls on a Saturday, Sunday or Federal holiday in the District of Columbia, the time is extended to the next day which is neither a Saturday, Sunday nor a Federal holiday.
- (3) If a party to an inter partes proceeding has taken an appeal to the U.S. Court of Appeals for the Federal Circuit and an adverse party has filed notice under section 21(a)(1) of the Act electing to have all further proceedings conducted under section 21(b) of the Act, the time for filing a civil action thereafter is specified in section 21(a)(1) of the Act. The time for filing a cross-action expires 14 days after service of the summons and complaint.
37 CFR § 2.145(e) Extensions of time to commence judicial review. The Director may extend the time for filing an appeal or commencing a civil action (1) for good cause shown if requested in writing before the expiration of the period for filing an appeal or commencing a civil action, or (2) upon written request after the expiration of the period for filing an appeal or commencing a civil action upon a showing that the failure to act was the result of excusable neglect.
The time for filing a notice of appeal to the United States Court of Appeals for the Federal Circuit ("Federal Circuit") is two months from the date of the Board decision which is the subject of the appeal. [ Note 1.] When the two-month period includes February 28, an additional day is added. [ Note 2.] Likewise, if the last day for filing an appeal falls on a Saturday, Sunday or Federal holiday in the District of Columbia, then the time is extended to the next day which is not a Saturday, Sunday or Federal holiday. [ Note 3.] When the Board enters judgment in favor of a Trademark Act §1(b), 15 U.S.C. § 1051(b) applicant subject to that party’s establishment of constructive use (see TBMP § 901.02(b)), the time for filing an appeal runs from the date of the entry of judgment subject to establishment of constructive use. [ Note 4.]
If a request for rehearing, reconsideration, or modification of the Board’s decision is filed within the time specified in 37 CFR § 2.127(b), 37 CFR § 2.129(c), or 37 CFR § 2.144, or within any extension of time granted thereunder, the time for filing an appeal expires two months after action on the request. [ Note 5.] When the two-month period includes February 28, an additional day is added. [ Note 6.] Likewise, if the last day for filing an appeal falls on a Saturday, Sunday or Federal holiday in the District of Columbia, then the time is extended to the next day which is not a Saturday, Sunday or Federal holiday. [ Note 7.] Because the Board’s rules do not permit a second or subsequent request for reconsideration, only a timely first request for reconsideration or modification will toll the time for filing an appeal.
In an inter partes case, the time for filing a notice of cross-appeal expires (1) 14 days after service of the notice of appeal, or (2) two months from the date of the Board decision which is the subject of the appeal, whichever is later. [ Note 8.]
The certificate of mailing and certificate of transmission procedures described in 37 CFR § 2.197, and the Priority Mail Express® procedure described in 37 CFR § 2.198, are available for filing a notice of appeal or a notice of cross-appeal.
If a written request to extend the time for appeal is filed before the expiration of the appeal period, the Director may grant the request on a showing of good cause. If the request is not filed until after the expiration of the appeal period, the Director may grant the request only on a showing that the failure to act was the result of excusable neglect. [ Note 9.] A request for an extension of time to file an appeal should be directed to the attention of the Office of the
Solicitor at the following address:
Office of the Solicitor
Mail Stop 8
U.S. Patent and Trademark Office
P.O. Box 1450
Alexandria, Virginia 22313-1450
It is the Director, through the Office of the Solicitor in the Office of the General Counsel, not the Board, who determines whether a notice of appeal has been timely filed. If the Director determines that a notice of appeal was not timely, the Director notifies the clerk of the Federal Circuit thereof. The clerk in turn issues an order to the appellant to show cause why the appeal should not be dismissed, and refers appellant’s response to the Court. [ Note 10.]
An appellant that has received an order to show cause from the clerk of the Federal Circuit may file a request under 37 CFR § 2.145(e) for an extension of time to file an appeal, accompanied by a showing that the late filing of the notice of appeal was the result of excusable neglect. The request should be filed in the Office of the Solicitor, which will notify the clerk of the Court of the Director’s decision on the request.
NOTES:
1. Trademark Act § 21(a)(2), 15 U.S.C. § 1071(a)(2); 37 CFR § 2.145(d)(1).
4. 37 CFR § 2.129(d); Zirco Corp. v. American Telephone and Telegraph Co., 21 USPQ2d 1542, 1544-45 (TTAB 1991) (judgment entered in favor of applicant subject to applicant’s establishment of constructive use).
10. See Fed. Cir. R. 15(b)(1)(B).