703.02(a)    Depositions on Written Questions: When Available

37 CFR §  2.123 

  • (a)
    • (1) The testimony of witnesses in inter partes cases may be taken by depositions upon oral examination as provided by this section or by depositions upon written questions as provided by § 2.124. If a party serves notice of the taking of a testimonial deposition upon written questions of a witness who is, or will be at the time of the deposition, present within the United States or any territory which is under the control and jurisdiction of the United States, any adverse party may, within fifteen days from the date of service of the notice, file a motion with the Trademark Trial and Appeal Board, for good cause, for an order that the deposition be taken by oral examination.
    • (2) A testimonial deposition taken in a foreign country shall be taken by deposition upon written questions as provided by § 2.124, unless the Board, upon motion for good cause, orders that the deposition be taken by oral examination, or the parties so stipulate.
  • (b) Stipulations. If the parties so stipulate in writing, depositions may be taken before any person authorized to administer oaths, at any place, upon any notice, and in any manner, and when so taken may be used like other depositions. By written agreement of the parties, the testimony of any witness or witnesses of any party, may be submitted in the form of an affidavit by such witness or witnesses. The parties may stipulate in writing what a particular witness would testify to if called, or the facts in the case of any party may be stipulated in writing.

Ordinarily, the testimony of a witness may be taken either on oral examination pursuant to 37 CFR § 2.123, or by deposition on written questions pursuant to 37 CFR § 2.124. [ Note 1.] For information concerning depositions on oral examination, see TBMP § 703.01.

However, if a party serves notice of the taking of a testimony deposition on written questions of a witness who is, or will be at the time of the deposition, present within the United States (or any territory which is under the control and jurisdiction of the United States), any adverse party may, within 15 days from the date of service of the notice (20 days if service of the notice was by first-class mail, Priority Mail Express®, or overnight courier--see 37 CFR § 2.119(c) ), file a motion with the Board, for good cause, for an order that the deposition be taken by oral examination. [ Note 2.] See TBMP § 703.01(b).

In addition, a testimony deposition taken in a foreign country must be taken by deposition on written questions, unless the Board, on motion for good cause, orders that the deposition be taken by oral examination, or the parties so stipulate. [ Note 3.] See TBMP § 703.01(b).

NOTES:

 1.   37 CFR § 2.123(a)(1).

 2.   See 37 CFR § 2.123(a)(1).

 3.   37 CFR § 2.123(a)(2).