801.02(a) Plaintiff's Main Brief
The main brief of the party in the position of plaintiff is due not later than 60 days after the date set for the close of the rebuttal testimony period. [ Note 1.] The five-day addition under 37 CFR § 2.119(c) is not applicable to the deadline for plaintiff’s brief, defendant’s brief or plaintiff’s rebuttal brief. See TBMP § 113.05 and TBMP § 310.03(b)
If a party in the position of plaintiff fails to file a main brief, the Board may issue an order allowing plaintiff until a set time, not less than 15 days, in which to show cause why its failure to file a main brief should not be treated as a concession of the case. If the plaintiff fails to file a response to the order, or files a response indicating that it has lost interest in the case, judgment may be entered against the plaintiff. [ Note 2.] The purpose of this order to show cause procedure is to save the Board the burden of determining a case on the merits where the parties have settled, but have neglected to notify the Board, or where the plaintiff has lost interest in the case. It is the policy of the Board not to enter judgment against a plaintiff, for failure to file a main brief on the case, where the plaintiff, in its response to the show cause order, indicates that it has not lost interest in the case.
For further information concerning the 37 CFR § 2.128(a)(3) order to show cause procedure, see TBMP § 536. For information on extensions of time, see TBMP § 509.
NOTES:
2. 37 CFR § 2.128(a)(3). See CTRL Systems Inc. v. Ultraphonics of North America Inc., 52 USPQ2d 1300, 1302 (TTAB 1999) (opposer’s failure to respond to order to show cause under 37 CFR § 2.128 resulted in entry of judgment).