1203.02(a) Applicant’s Main Brief
37 CFR § 2.142(b)(1) The brief of appellant shall be filed within sixty days from the date of appeal. If the brief is not filed within the time allowed, the appeal may be dismissed. The examiner shall, within sixty days after the brief of appellant is sent to the examiner, file with the Trademark Trial and Appeal Board a written brief answering the brief of appellant and shall mail a copy of the brief to the appellant. The appellant may file a reply brief within twenty days from the date of mailing of the brief of the examiner.
An applicant’s main brief in an ex parte appeal to the Board must be filed within sixty days from the date of appeal, or within an extension of time for that purpose. The time for filing the brief is set by rule; therefore, although the Board attempts to send the applicant an acknowledgement of the receipt of the notice of appeal which indicates the date the brief is due, the failure to receive such acknowledgement does not affect the deadline for such filing. [ Note 1.] If no brief is filed, the appeal will be dismissed. [ Note 2.] If the brief is filed late, the applicant will be allowed an opportunity to submit an explanation for the late filing; in the absence of an adequate explanation, the appeal will be dismissed. The determination of whether to accept the brief will depend on the circumstances, including the length of time after the due date that the brief is filed.
If the appeal is dismissed for failure to file a timely brief, the applicant’s recourse is to file a petition to the Director under the provisions of 37 CFR. § 2.146 (a)(3). Because such a petition invokes the supervisory authority of the Director, it is determined under the clear error/abuse of discretion standard, that is, whether the Board has committed clear error or abused its discretion in its determination not to accept the late-filed brief. [ Note 3.] The applicant should not file a petition to the Director until it has first filed with the Board a request/motion to accept the late-filed brief, and that request/motion has been denied.
Further, a petition to revive is not available when an applicant has failed to file an appeal brief or has filed its appeal brief late. The petition to revive procedure provided in 37 CFR § 2.66(a) applies only to situations in which the applicant did not timely respond to an Office action or notice of allowance. The filing of an appeal brief is not a response to an Office action. Thus, the "unintentional delay" standard of 37 CFR § 2.66(a) does not apply to the determination of whether a late-filed brief will be accepted. [ Note 4.]
If a notice of appeal (accompanied by the required fee) is filed with a certificate of mailing by first-class mail pursuant to 37 CFR § 2.197, the date of mailing specified in the certificate will be used for determining the timeliness of the notice of appeal. However, the actual date of receipt of the notice of appeal in the Office will be used for all other purposes, including the running of the time for filing applicant’s main brief. [ Note 5.]
If an applicant that has filed a timely request for reconsideration of a final action, second refusal on the same ground(s), or repeated requirement, also files a timely appeal, and the examining attorney has not yet considered the request for reconsideration when the appeal is filed, or if the applicant files a request for reconsideration along with the notice of appeal, the application, with the appeal and the request for reconsideration, will be forwarded to the Board. However, because papers may become separated, if an applicant files a request for reconsideration along with a paper notice of appeal, it should indicate in the notice of appeal that a request for reconsideration is being filed contemporaneously. If the applicant files its notice of appeal through the Board’s electronic ESTTA filing system, it should check the box that indicates that a request for reconsideration is also being filed. The Board will acknowledge receipt of the appeal and request, suspend further proceedings (including the applicant’s time for filing its appeal brief) with respect to the appeal, and remand the application to the examining attorney for consideration of the request. Because proceedings in the appeal are automatically suspended when a request for reconsideration is pending, the applicant should not file its appeal brief within sixty days of the filing of the notice of appeal, as provided by 37 CFR § 2.142(b)(1), even if the Board has not issued its order suspending proceedings prior to the date the appeal brief would otherwise be due. Nor does the applicant need to verify with the Board that the due date for its brief will be changed if necessary. [ Note 6.] See TBMP § 1204.
If, upon the examining attorney’s consideration of the request for reconsideration, all refusals and requirements are not withdrawn, and a new final refusal or action maintaining the finality of a prior Office action is issued (either in the examining attorney’s action on the request for reconsideration, or in a subsequent action), the six-month response clause should be omitted from the paper in which such action is taken; the application should be returned to the Board; proceedings with respect to the appeal will be resumed; and the applicant will be allowed time in which to file its appeal brief. See TBMP § 1205 for the procedure when the request for reconsideration contains an amendment. If the examining attorney approves the application for publication (or for registration, in the case of a Supplemental Register application), the appeal will be moot. The examining attorney should so notify the applicant by telephone or email. [ Note 7.]
NOTES:
1. In re Live Earth Products Inc., 49 USPQ2d 1063, 1064 (TTAB 1998).
3. See TMEP § 1706.
4. See TMEP § 1714.01(f)(i)(A).
6. See In re Live Earth Products Inc., 49 USPQ2d 1063, 1064 (TTAB 1998).
7. See TMEP § 715.04.