310.03(b) Five -Day Addition Under 37 CFR § 2.119(c) Not Applicable to Deadlines Set by Board
As provided by 37 CFR § 2.119(c), in part, "[w]henever a party is required to take some action within a prescribed period after the service of a paper upon the party by another party and the paper is served by first-class mail, "Priority Mail Express®" or overnight courier, 5 days shall be added to the prescribed period." This provision, by its very terms, applies only when a party has to take some action within a prescribed period after the service of a paper on it by another party (and service of the paper was made in one of three specified ways). It does not apply to an action that must be taken by a party within a time set in a communication from the Board [ Note 1.] or when service is effected in other than the three specified ways, such as when the parties have agreed to accept service by email or by facsimile transmission. [ Note 2.]
Thus, when a Board notification allows the defendant 40 days from the mailing date of the notification in which to file an answer to the complaint, the answer is due on or before the 40th day, not on the 45th day. Similarly, when the Board allows a counterclaim defendant 30 days from the mailing date of the Board’s notification in which to file an answer to the counterclaim, the answer is due on or before the 30th day, not on the 35th day. See also TBMP § 801.02 (time for filing briefs).
NOTES:
1. See Amazon Technologies, Inc. v. Wax, 95 USPQ2d 1865, 1867 n.4 (TTAB 2010) (where due date for opposer’s responses to discovery was set by Board order to fall on a Sunday, the responses were timely served on the following Monday).
2. See Miscellaneous Changes to Trademark Trial and Appeal Board Rules, 72 Fed. Reg. 42242, 42250 (August 1, 2007).