207.03 Extensions Beyond 120 Days From the Date of Publication
The time for filing an opposition will not be extended beyond 180 days from the date of publication. After one or two granted requests totaling 120 days from the date of publication, see TBMP § 207.02, and prior to the expiration of the previous request, the potential opposer may request one final extension of time for an additional sixty days. [ Note 1.]
The final request (120-180 days after publication) can only be granted for sixty days and not any other period of time. [ Note 2.] For example, the potential opposer cannot request a thirty day extension of time, even with the consent of the applicant. If an extension of less than sixty days is requested based on consent, the request will be denied unless the reasons stated for the granting of the request are extraordinary, in which case the request will be granted for sixty days instead of the thirty days requested. This is because a thirty day extension of time is not permissible under 37 CFR § 2.102(c)(3). However, the citation of extraordinary circumstances would allow the granting of a sixty day extension of time. No further extensions of time to file an opposition will be granted under any circumstances. [ Note 3.]
The Board will grant this request if the potential opposer submits one of the following: (1) a written consent or stipulation signed by the applicant or its authorized representative, or (2) a written request by the potential opposer or its authorized representative stating that the applicant or its authorized representative has consented to the request, or (3) a showing of extraordinary circumstances. [ Note 4.]
Extraordinary circumstances are those which are beyond what is usual or ordinary, for example fire, extreme weather, or death. Settlement negotiations between the parties, the filing of a letter of protest by the potential opposer, the pendency of a post-publication amendment, or civil litigation between the parties do not constitute extraordinary circumstances. [ Note 5.]
Consent to an extension of time to oppose must be express, though it may be provided orally, and the extension request must state that such consent has been provided. It is not sufficient to indicate in the request that the parties are discussing settlement; the request must expressly state that applicant has consented to the extension. [ Note 6.] In addition, the statement of consent should appear in the body of the request, not merely in the title (e.g. "Consented Request to Extend") of the filing.
If one of these elements (i.e., the showing of extraordinary circumstances, or applicant’s written consent, or the statement that applicant has consented) is omitted from an extension request based in whole or in part upon the omitted element, the Board can allow the defect to be corrected only if the correction is made prior to the expiration of the time for filing the request, that is, prior to the expiration of the previous extension. [ Note 7.]
NOTES:
5. In re Societe Des Produits Nestle S.A., 17 USPQ2d 1093, 1094 (Comm’r 1990) (mere existence of settlement discussions does not constitute extraordinary circumstances).
6. See In re Su Wung Chong, 20 USPQ2d 1399, 1400 (Comm’r 1991) (applicant’s silence in response to potential opposer’s inquiries about extension requests does not amount to consent).
7. In re Societe Des Produits Nestle S.A., 17 USPQ2d 1093, 1094 (Comm’r 1990) (extraordinary circumstances not shown for extension; subsequently obtained consent insufficient). Cf. In re Spang Industries, Inc. 225 USPQ 888, 888 (Comm’r 1985) (potential opposer not identified with reasonable certainty; defect not curable after time for filing extension expired).